Is the Affordable Care Act’s penalty for not purchasing health insurance a tax? Supreme Court Chief Justice John Roberts thinks so, and so did presumed Republican presidential nominee Mitt Romney. But not Mitt Romney’s senior adviser, apparently.
The Supreme Court’s decision makes Obamacare, already an awkward topic for Romney, who implemented its predecessor in Massachussetts, all the more sticky because the ruling makes Obamacare’s enforcement mechanism almost identical to the one used in Romney’s law. Romney, like every other Republican, nonetheless denounced the Affordable Care Act as a giant tax increase, given the politically charged nature of taxes. (In fact, Romneycare’s penalty is more than twice as large as Obamacare’s.) The Obama administration, meanwhile, has responded to the court’s ruling by arguing that the mandate's enforcement fee is not, in fact, a tax but rather a penalty for people who try to bilk their responsibility to purchase insurance, like a parking ticket.
This gives Romney almost no room to navigate. If he wants to defend his own law, he’ll call it a penalty, but if he wants to attack Obamacare, he’ll call it a tax. But he can’t have it both ways at the same time, so the Romney campaign seems to have split the baby. Appearing on MSNBC this morning, Romney campaign strategist Eric Fehrnstrom adopted the Obama administration's position that the fee is a penalty for freeriders and not a tax. "He agreed with the dissent that was written by Justice Scalia, which very clearly stated that the mandate was not a tax,” Fehrnstrom said.
Meanwhile, Romney blasted Obamacare on Friday because it “raises taxes on the American people by approximately $500 billion.” But Fehrnstrom, ironically, accused Team Obama of making “hypocritical and contradictory statements” on whether the mandate is a tax or penalty, saying the Democrat has been “all over the map.”
However, Fehrnstrom’s characterization appears to be the campaign’s new message rather than a deviation from it. Asked by reporters on the campaign trail about Fehrnstrom’s comments, Romney Deputy Press Secretary Amanda Henneberg said, “Gov. Romney thinks it is an unconstitutional penalty." If this is indeed the campaign's new line, then Obama and Romney may find themselves to be strange bedfellows making the same argument (though with different conclusions) that the mandates in both of their laws are not taxes but penalties. Alternatively, Romney may be employing the same tactic he used during last month's immigration debate: Take no clear position in order to muddy the waters, then hope the news cycle moves on to something else before your evasiveness becomes too harmful.
But don’t expect other Republicans to give Romney any backup. They’ve already said they’ll continue using the tax line, no matter what Romney says. Senate Minority Leader Mitch McConnell, when asked yesterday about the tax/penalty distinction on Fox News Sunday, replied, “I think Gov. Romney will have to speak for himself about what was done in Massachusetts.”