A semantic dispute over what defines "a tax" or "a penalty" has pushed Mitt Romney's presidential campaign deeply off message as he struggles for the right response to last week's Supreme Court ruling upholding the health care law.
New Jersey Gov. Chris Christie, one of Mr. Romney's top surrogates, said Tuesday that in approving the law, the high court has officially stamped President Obama's mandate a tax.
In doing so, Mr. Christie kneecapped top campaign strategist Eric Fehrnstrom, who a day earlier said it wasn't a tax but rather a penalty. He was trying to preserve the tax-free integrity of the health care legislation that Mr. Romney signed as governor of Massachusetts.
Still to come is Mr. Romney himself, who analysts said eventually will have to take sides.
If he calls it a tax, he will be rejecting his top strategist and flip-flopping on his own stance in Massachusetts. But if he insists it's a penalty, he would be agreeing with Mr. Obama and undercutting the attack strategy that most Republicans have taken since last week's ruling.
Mr. Christie, in his typical blunt fashion, upped the pressure on Mr. Romney to take a position when he told Fox News Channel that it's up to Mr. Romney to answer the question.
"Listen, I get less concerned about what spokespeople say and more concerned about what the person who's going to be president of the United States says," Mr. Christie said. "I think sometimes we get obsessed over, you know, what different spokespeople will say. You know why they're spokespeople and not candidates? You just saw that reason. Gov. Romney knows what he feels about these issues, and he feels strongly about them."
The Romney campaign didn't respond Tuesday to questions asking which side the presumptive Republican presidential nominee backs.
Meanwhile, Democrats have watched gleefully from the sidelines as the dust-up has dented the Republicans' chief health care argument.
"He is really between a rock and a hard place — especially when it come to taxes, which is the most important thing for many Republicans," said strategist Jim Manley.
The Supreme Court, in a 5-4 ruling Thursday, said the mandate requiring all Americans to obtain health care coverage or else pay a fine to the Internal Revenue Service was constitutional under Congress' broad taxing powers.
Mr. Obama had publicly insisted the mandate was not a tax, but his attorneys argued to the courts that it was. The Supreme Court agreed and upheld the law on that basis despite agreeing with the main argument brought by the bill's opponents — that the mandate was not an exercise of Congress' power to regulate interstate commerce.
If it is indeed a tax, that would mean the president had broken his pledge not to raise taxes on the middle class.
Mr. Romney relied on the same mechanisms — an individual mandate backed up by a fine/penalty/tax — in the health care legislation that Massachusetts enacted under his governorship. He, too, would be in violation of his own no-new-taxes pledge if he accepts the court's label.
Mr. Romney has said he disagrees with Chief Justice John G. Roberts Jr.'s opinion, arguing that it is not a tax and therefore doesn't fall within Congress' powers. However, he says, it still would be a legitimate exercise of a state's authority.
On Monday, campaign spokeswoman Andrea Saul said the pressure is on Mr. Obama to choose between calling it a tax or accepting it as a penalty — and therefore unconstitutional.
But one Republican strategist said that was playing "a cat-and-mouse game" and urged Mr. Romney to move on.
"The Romney campaign is overplaying its hand on the penalty/tax debate, given that polling shows roughly 40 percent of voters don't even know the Supreme Court has ruled on Obamacare and given that there still exists a lot of low-information voters out there who don't even have a clear understanding of what Obamacare entails and who it affects," said Ford O'Connell, a political strategist who ran the McCain-Palin 2008 campaign's national rural outreach program.
For congressional Republicans, there was no doubt about what the high court said.
"The Supreme Court has spoken. This law is a tax," Senate Minority Leader Mitch McConnell, Kentucky Republican, said in a fiery speech on the Senate floor after the court announced its ruling. "The bill was sold to the American people on a deception."
Most in the party seem to agree with Mr. McConnell.
"It is a tax. I don't think there is any question about it," said Bob Bennett, chairman of the Ohio Republican Party.
Still, Mr. Bennett said the issue of labels won't damage Mr. Romney's broader message for voters, which is a stern vow to repeal the entire health care law.
"Look, Obamacare is an abomination on the American taxpayer and those who require health care. I think if you ask anybody — Republicans and Democrats — there are pieces of that in there that are good that I think both Democrats and Republicans can support. The bill as a whole is a bad bill," he said.
"I think, you know, Romney is OK. He says he wants to repeal Obamacare and start over. I think that is the right thing to say," Mr. Bennett said.
Numerous Capitol Hill Republicans were miffed by the Romney campaign's decision to go with the "penalty" label Monday, but they are plowing ahead with their own tax arguments.
The chairman of Congress' top tax-writing committee announced Tuesday that he would hold a hearing looking at the effects of the newly labeled tax.
"I strongly disagree with the court's decision and its holding that Congress can tax Americans who choose not to purchase government-approved health insurance," said Chairman Dave Camp, Michigan Republican. "This ruling sets a dangerous precedent with potentially enormous consequences."
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