Republican presidential candidate Mitt Romney carries his granddaughter… (Charles Dharapak / Associated…)
Presumptive GOP presidential nominee Mitt Romney did not flip-flop Wednesday when he branded the insurance mandate in the 2010 healthcare reform law a tax. Instead, he merely shot himself in the foot.
Writing for himself and the court's four liberal justices, conservative Chief Justice John G. Roberts Jr. held last week that the requirement that virtually all adult Americans obtain insurance coverage or pay an extra amount to the Internal Revenue Service was, in effect, a tax on the uninsured. A joint dissent by the court's four conservatives noted tartly that the mandate-related payment was a penalty -- a fee imposed for violating a law -- and not a tax. (The Times' editorial board, for its part, contends that the mandate is best understood as a regulation on the way people pay for the healthcare they will almost certainly need, even if the timing and extent of that care is unknown.)
In a carefully constructed comment, Romney sought to align himself with both camps in the divided court. Although he "vehemently disagreed" with Roberts' opinion and embraced Justice Antonin Scalia's reasoning that the mandate was not a tax, Romney told CBS News, "The majority of the court said it’s a tax and, therefore, it is a tax."
COMMENTARY AND ANALYSIS: Presidential Election 2012
The problem is that Romney's chief campaign spokesman, Eric Fehrnstrom, publicly disputed the court's finding last week. Some analysts said Fehrnstrom was trying to defend Romney from accusations that he too raised taxes as governor of Massachusetts by pushing through an individual mandate as part of the state's groundbreaking healthcare reform law. Fehrnstrom's position also happens to make sense, and it's much easier for voters to understand than Roberts' tortured reasoning.*
Romney's name will be on the ballot, not Fehrnstrom's, so there's nothing wrong with Romney disagreeing with his spokesman. And it's not a flip-flop for the campaign to change its messaging; it would be a flip-flop for the campaign to change its position on "Obamacare," which it has not.
But Romney's attempt to distinguish the Massachusetts mandate from the federal one is even more tortured than Roberts' ruling. According to Romney, states can impose mandates without needing to call them taxes to survive constitutional scrutiny.
Say what? If a government requires you to buy insurance, the effect is going to be the same regardless of whether the order is coming from Washington or the state capital. For those who don't carry insurance because they can't afford it or don't believe it's worth the expense, the mandate is going to feel like an imposition -- analogous to a tax but with something valuable available in return.
But assume for a moment that Romney's right and we should think about the insurance mandate as a tax. The obvious implication is that Romney, as governor, raised taxes on his state's residents. What's a tax for the goose, after all, is a tax for the gander. But once again, Romney has tried to warp perspective with legalistic arguments and present a distinction between Obamacare's approach to universal coverage and "Romneycare's" that most reality-grounded voters simply cannot see.
Evidently Romney couldn't resist the urge (or pressure) to join other Republicans in using Roberts' ruling to bash President Obama for breaking his promise not to raise taxes on the middle class. Romney's already said he didn't raise taxes as governor of Massachusetts. Does Roberts' ruling make that a lie?
Romney's history on healthcare means that every attack he makes on the 2010 law sets a potential trap in his path. He's on much safer ground talking about what he'd replace the law with -- even if his plan is mighty vague -- than discussing the law's failings, particularly when the provisions in question have so much in common with his own state's reform.
*According to Roberts, the mandate is not a tax for the purposes of the Anti-Injunction Act, which bars lawsuits against new tax laws before they are actually collected. But the mandate can be construed as a legitimate exercise of Congress' taxing power, Roberts ruled, if you find (as Roberts and the court's four other conservatives did) that it's not a legitimate exercise of Congress' power to regulate interstate commerce or "necessary and proper" to the exercise of Congress' other enumerated powers. Or something like that.