Romney Campaign: Individual Mandate Is A Penalty, Not A Tax

The Romney campaign seems to be going off script in terms of the Republican response to the Supreme Court’s PPACA ruling. As I noted earlier today, the GOP has been pushing hard in the days since the decision came down the meme that the mandate is, by Supreme Court declaration, a tax and that the President Obama therefore engaged in deception to get the law passed and in promising he’d never raise taxes on the middle class. The Romney campaign, however, doesn’t seem to be interested in playing along with that meme:

Prominent Dems including White House chief of staff Jack Lew and House Minority Leader Nancy Pelosi have repeatedly argued in recent days that the fee for not buying insurance under the health care law is in fact a penalty and not a tax.

They got support from an unexpected quarter on Monday: the Romney campaign.

Mitt Romney’s senior adviser Eric Fehrnstrom told Chuck Todd on MSNBC’s Daily Rundown that he agrees – the fee is a penalty and not a tax, as the Supreme Court ruled last week.

“The governor disagreed with the ruling of the court,” Fehrnstrom said. “He agreed with the dissent that was written by Justice [Antonin] Scalia, which very clearly stated that the mandate was not a tax.”

Some Republicans latched on to the ruling last week as proof that the health insurance mandate qualifies as a tax. Rush Limbaugh notably called it “the biggest tax increase in the history of the world.”

While Fehrnstrom diverged from that line of attack, he took issue with President Obama’s various positions on the tax vs. penalty issue, saying that Obama first said it wasn’t a tax to get it through Congress, then argued at the Supreme Court that it was, before switching again and arguing that it wasn’t.

“He’s all over the map,” Fehrnstrom said on MSNBC.

Well, isn’t that also true of Governor Romney, Eric? So far, there hasn’t been any kind of “clarification” from the Romney campaign walking this comment back, and it’s possible that we won’t see one. After all, the penalty provision in the Massachusetts health care plan that Romney guided through the state legislature when he was Governor is essentially identity to the one in the PPACA, and is collected via the state income tax form in the same way that the PPACA penalty would be a line item on everyone’s Form 1040. If the Romney camp doubles down on the GOP meme that the mandate is a tax, then he sets Romney up for someone to point out that the Governor had the same penalty collected in the same manner in his health care plan, so that must be a tax too huh?

Here’s the video of Fehrnstrom’s appearance on The Daily Rundown:

FILED UNDER: Campaign 2012, Health Care, Quick Takes, Taxes, US Politics,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020.

Comments

  1. Pelosi is not using the smartest angle.

    The best way to start is by noting that most people have health insurance, and for them this is a non-issue.

    Let the GOP come back after that, and let them name who it affects.

  2. sam says:

    “If the Romney camp doubles down on the GOP meme that the mandate is a tax, then he sets Romney up for someone to point out that the Governor had the same penalty collected in the same manner in his health care plan, so that must be a tax too huh?”

    As I pointed out in a previous thread, Mittens said it was a tax. Well, in truth, and in typical Romney fashion, he tried to have it both ways:

    Our experience also demonstrates that getting every citizen insured doesn’t have to break the bank. First, we established incentives for those who were uninsured to buy insurance. Using tax penalties, as we did [my emphasis], or tax credits, as others have proposed, encourages “free riders” to take responsibility for themselves rather than pass their medical costs on to others. This doesn’t cost the government a single dollar. [Source]

    This is one fubarred campaign.

  3. @sam:

    Romney’s biggest problem is that he was for it, before he was against it.

    Somebody should ask him “what did you call it when you were in love with it?”

  4. Tsar Nicholas says:

    This is a major quandry for Team Romney. He’ll need to get on the idiot box in the key states with paid ads and to explain himself to Zombieland. If he lets the Democrats define this issue for him it’ll become a very tall hurdle to overcome.

  5. @Tsar Nicholas:

    Dude, the Democrats only need to remind you of the best defense of individual mandate you ever heard … by Mitt Romney.

    I’m probably jumping the gun. That video probably isn’t meant to go big until September. They’re probably letting Romney dig his hole deeper until then.

    That’s not hyperbole. Think about Romney totally defining himself as the anti-mandate guy, and then think about that video playing full length.

    (maybe you better try to oust him at the convention!)

  6. Or maybe Romney is setting up to play this angle:

    1. The mandate was not passed by Congress as a tax, but as an exercise of Commerce-clause power.

    2. The SCOTUS said it did not pass muster under commerce powers.

    3. But it’s not a tax, according to Congress.

    4. Therefore, regardless of what the Court said about taxation powers, the Act is unconstitutional Commerce-clause legislation, according to the ruling.

    5. Therefore, I as president will not enforce it because it is unconstitutional.

    I would add that by my understanding of the ruling, the Court did not say that the mandate is a tax. It said that the mandate is allowable under the Congress’s taxation powers and that therefore the Court let it stand, regardless of how Congress (or the solicitor general) characterized the mandate. Sort of saying, “It would be Constitutional if it was a tax, and that’s close enough.”

    But I am not sure that the ruling actually, positively declares the mandate to be a tax. Doug, a lawyerly assessment of that?

    The again, Mittens might not be sharp enough to thread a needle like that (if indeed it is worth threading).

  7. PD Shaw says:

    @Donald Sensing: “I am not sure that the ruling actually, positively declares the mandate to be a tax.”

    I think that’s true. Roberts said the question is whether its “fairly possible” that the mandate is a tax, and he ruled it was.

    Doug didn’t like one description of this type of ruling (the tie goes to the government), but another might be to football instant replay– a play on the field (that is the government’s position) stands unless “incontrovertible visual evidence” on replay shows the call should be overturned.

  8. PD Shaw says:

    Roberts laid out about three factors that suggested it might be a tax. As I recall, he looked at the size of the tax, that it was collected as part of a general taxation scheme and was enforced as a monetary judgment. If the mandate changed any factor, it might no longer be a tax, but a penalty. From my understanding the Massachusetts penalty is higher, so its quite possibly not a tax on that ground alone.

    States do not operate under “enumerated powers” limitations like Congress, so the issues wouldn’t be the same in Massachusetts.

  9. al-Ameda says:

    Mitt Romney’s senior adviser Eric Fehrnstrom told Chuck Todd on MSNBC’s Daily Rundown that he agrees – the fee is a penalty and not a tax, as the Supreme Court ruled last week.

    I give him 30 … 29 … 28 … seconds before he realizes that he and the Administration agree on this, and that he’s pissing off Mitch McConnell by taking this position.

    Romney will be running against himself for the next 5 months.

  10. john personna says:

    @Donald Sensing:

    Why should the average person care about second-guessing the supreme court?

    I can see that as a tactic for someone with a strong ideological opposition to universal healthcare. A defensive tactic, because they don’t want to talk about universal healthcare directly.

    Doesn’t it end up being sort of an in-group gripe? People who don’t like Obama or the ACA will grumble about Roberts and the decision for years to come. Surely they are a minority.

    At some point the less ideologically bound will start moving on, and talking about healthcare.

  11. Dazedandconfused says:

    Don’t know what made me think of this, just suddenly remembered tap-dancing on roller skates.

    http://www.youtube.com/watch?v=zZ3fjQa5Hls

  12. matt says:

    @Donald Sensing: The tax angle was in every government filing in defense of the ACA.. Just no one cared..