One of the few bright spots in last week’s Supreme Court ruling on President Obama’s health care overhaul was a political one: The opinion written by Chief Justice John Roberts argues that Obamacare is constitutional under the taxing powers of Congress. The Obama administration’s advocate before the Court, Solicitor General Donald Verrilli, made this case during oral arguments, and Roberts bought it. The decision, in a sense, formalized what many conservatives had long argued: The Obamacare tax is a tax.
The politics could have hardly been better: The Obama administration and other Democrats would not only have to defend an unpopular law, but they’d have to try explain that a mandate upheld because of the power of Congress to tax was not, in fact, a tax. Democrats tried unsuccessfully to make that case this weekend with White House chief of staff Jack Lew and House minority leader Nancy Pelosi, among others, struggling to deflect the obvious implications of the Court’s decisions.
Those struggles may have ended yesterday morning when the Romney campaign announced that their candidate does not consider the mandate a tax. Romney spokesman Eric Fehrnstrom appeared on MSNBC’s DailyRundown with Chuck Todd, where he agreed with the host’s assertion that Romney “believes that you should not call the penalty a tax.”
Fehrnstrom explained: “The governor disagreed with the ruling of the Court. He agreed with the dissent written by Justice Scalia, which very clearly stated that the mandate is not a tax.” Later, Romney spokeswoman Amanda Henneberg confirmed that Romney doesn’t consider the mandate a tax, telling ABC News: “Governor Romney thinks it is an unconstitutional penalty.”
That’s an odd argument. It’s not only possible but also perfectly consistent to agree with the argument in Scalia’s dissent that the mandate should not have been considered a tax for the purposes of constitutionality, but to bow to the reality that the Roberts decision makes it so. Whatever the mandate was before the decision, and regardless of how strongly one disagrees with the ruling, it’s a tax now.
Why did Romney do it? Presumably because calling the Obamacare tax a tax would, by implication, mean that Romney’s mandate in Massachusetts could be similarly labeled. Romney has often boasted that he made his reforms “without raising taxes.” There are arguments he can make—federal taxing power versus police powers of states, for example—but Team Romney wants to avoid the issue altogether, preferring to give up an argument in 2012 to win one from 2005. Will general election voters care more about a bank-shot argument from Democrats that the Supreme Court ruling means Romney raised taxes seven years ago or about the Court’s decision having discredited President Obama’s claim that the mandate is not a tax and affirming Republican claims that it is one?
In any case, it won’t be possible to sideline the issue. It’s inconceivable that at least some of the campaign this fall will not focus on the differences between what Obama did at the federal level and what Romney did in Massachusetts, with the Obama campaign seeking to obscure those differences and Romney trying to accentuate them. Why not call it a tax and include those differences in that debate?
The Obama campaign, understanding the gift it’d been given, pounced quickly, tweeting: “Romney campaign: The individual mandate is a penalty on free riders, not a tax,” and sending out the video of Fehrnstrom on MSNBC. It’s not every day that a Democratic campaign turns to the spokesman for their rival to settle a semantic debate.
Congressional Republicans are reluctant to speak on the record, not wanting to take shots at their nominee, but it’s clear that many of them are not happy. "Romney is quickly proving himself to be what some of us expected, very reactionary without a clear alternative to Obamacare," said one Republican congressman. "The American people want and need the truth from him. Romneycare was both legal and a failure at the state level. Romney should just come clean."
House speaker John Boehner used the tax argument over the weekend on Face the Nation, saying that although Obama pretended “that it wasn’t a tax, nobody believed him, and now we know it.” Republicans across the country, including some of those representing Romney, have done the same. One Republican strategist says that will continue.
“It doesn’t quite matter whether Romney calls this a tax, a penalty, or a potato. Voters will call it a tax and so will every other Republican candidate running for every other office,” he says. “It will be the most popular attack ad in Senate and House campaigns. Much like the president resisted the term Obamacare before he embraced it, we are two months away from even Romney calling it a tax. Gravity cannot be suspended.”
By the end of the day, the Romney campaign sought to portray the episode as an example of Obama’s hypocrisy. “The Supreme Court left President Obama with two choices: the federal individual mandate in Obamacare is either a constitutional tax or an unconstitutional penalty,” said spokesperson Andrea Saul, in a press release. “Governor Romney thinks it is an unconstitutional penalty. What is President Obama’s position: is his federal mandate unconstitutional or is it a tax?”
It’s a question that the Court already answered.