United Liberty

Mitt Romney’s campaign disappointed Republicans on Monday when one of his advisors, Eric Fehrnstrom, said that they agreed with Barack Obama that the recently upheld individual mandate was not a tax. This is contrary to what the High Court had said in the opinion, where Chief Justice John Roberts wrote that the mandate was only constitutional due to the Taxing Power of Congress.

In an interview with CBS News, Romney backed away from that statement, noting that the Supreme Court has the final word and ruled that it is a tax:

Mitt Romney says the Supreme Court has decided that President Barack Obama’s health care mandate is a tax, but he maintains that the high court has made clear it does not consider a Massachusetts health care mandate a tax.

The Republican presidential candidate told CBS News on Wednesday that the Supreme Court opinion makes clear that states have the power to put in place a mandate or a penalty and that it is constitutional.

The former Massachusetts governor said that the court’s opinion said states have the power to pass such a penalty, but the federal government does not. And he said for the court to find Obama’s plan constitutional they had to rule his mandate was a tax.

Therefore, Romney says: “Obamacare’s a tax.”

His woes on this issue aren’t over. As I noted on Tuesday, Romney’s health care law served as the blueprint for ObamaCare, which is possibly why they initially agreed with President Obama. The talking point now about RomneyCare is that it was legislated and signed into law as a penalty.

What Team Romney could argue, what would be a safer bet instead of getting into the nuances and inside baseball of how the two laws were passed, would be to point out that the Obama Administration argued that the individual mandate was a tax. Remember, they gave three separate arguments to the Supreme Court for the law — the Commerce Clause, the Necessary and Proper Clause, and the Taxing Power of Congress. In the end, Chief Justice Roberts bought the Taxing Power argument.

Romney needs better messaging on ObamaCare, and I’m surprised his advisors are fumbling it so badly. Simply state the plain and simple fact that the Obama Administration said it was a tax.