- The Washington Times - Monday, July 2, 2012

In the wake of the Supreme Court’s ruling last week, Republicans on Capitol Hill spent four days laying out an attack on President Obama’s health care law as a massive tax increase.

On Monday, Mitt Romney’s top campaign strategist undercut them.

Eric Fehrnstrom said Mr. Romney agrees with Mr. Obama that the law’s punishment for flouting the individual mandate and not buying health insurance is a “penalty,” not a tax — just like the legislation Mr. Romney signed as governor of Massachusetts.

“The governor has consistently described the mandate in Massachusetts as a penalty,” Mr. Fehrnstrom said on MSNBC. “The governor disagreed with the ruling of the court; he agreed with the dissent that was written by Justice [Antonin] Scalia, which clearly states the mandate was not a tax.”

After watching the court reject their legal arguments, congressional Republicans settled for what they hoped would be a powerful political attack, bolstered by the court’s declaration that the individual mandate amounted to a tax. The court’s conclusion contradicted Mr. Obama, who during the debate in 2009 and 2010 had repeatedly said it wasn’t a tax.

“The court has now spoken. It is a tax,” Senate Minority Leader Mitch McConnell, Kentucky Republican, said in the aftermath of the ruling.

He said the justices “blew the president’s cover.”

The National Republican Congressional Committee began issuing press releases using the court-approved tax argument to attack Democrats.

After Mr. Fehrnstrom’s comments Monday, however, activists said they had been undercut.

“We did not like Obamacare to start with and now that the Supreme Court has called it a tax, it gave Romney the room to run straight for a touchdown,” Tea Party Nation founder Judson Phillips wrote on the group’s blog. “What kind of idiots are running the Romney campaign? Instead of spiking the football and winning, the Romney campaign has just turned over the ball.”

He wondered whether it was too late for the GOP to have a brokered convention and replace Mr. Romney as its presidential nominee.

“One — it was a stupid thing to say,” said Ben Marchi, former director of the Virginia chapter of the anti-tax group Americans for Prosperity. “At the end of the day, whether you call it a tax or a fee, it means more money out of working Americans’ pockets in tough economic times. People who don’t have jobs right now don’t care whether you call it a tax or a fee.”

Still, he hoped conservatives would rally to Mr. Romney anyway.

“Conservatives don’t trust him because he’s the author of Romneycare. Conservatives trust him because he’s pledged to repeal Obamacare,” Mr. Marchi said.

Mr. McConnell’s office didn’t address the conflicting Republican messages, choosing instead to focus on an area where the Senate minority leader agreed with Mr. Romney: “The Supreme Court should have ruled Obamacare unconstitutional,” a spokesman said.

Mr. Romney signed a health law in Massachusetts that included a mandate, similar to the Obama reforms, requiring everyone to buy insurance — and imposing a fine on those who didn’t. Justice Ruth Bader Ginsburg even cited Mr. Romney’s law as backing for the national law in her concurring opinion last week.

But Mr. Romney has vowed to repeal the federal law, saying it goes beyond the powers of the federal government and saying states should be left to experiment.

At this point Mr. Romney and Mr. Obama agree that the mandate is not a tax — putting them in opposition to congressional Republicans. But Mr. Romney and Mr. Obama disagree over whether the law is constitutional.

Mr. Romney won backing from some GOP quarters. Virginia Attorney General Kenneth T. Cuccinelli II, who filed one of the key lawsuits against the national health care law, told The Washington Times that Mr. Romney is correct to argue that the penalty isn’t a tax.

“They upheld the law by expanding any known definition of the taxing power very dramatically,” Mr. Cuccinelli said. “For those who want to deny it’s a tax, then they have to essentially concede that it’s unconstitutional under any other power.”

The Romney campaign also tried to frame the issue as a problem for Mr. Obama.

“The Supreme Court left President Obama with two choices: The federal individual mandate in Obamacare is either a constitutional tax or an unconstitutional penalty,” spokeswoman Amanda Henneberg said. “Gov. Romney thinks it is an unconstitutional penalty. What is President Obama’s position: Is his federal mandate unconstitutional or is it a tax?”

During the primary election campaign, Mr. Romney’s opponents attacked him as the wrong messenger for Republicans to take into a general election battle that they hoped would make a referendum on the health care law.

Those opponents said Mr. Romney, as the man who signed an individual mandate plan in Massachusetts, didn’t have the credibility to attack Mr. Obama.

On Monday, they said those fears were borne out.

“Romney’s team still hasn’t solved their most fundamental problem — how to attack Obama’s health care policies while continuing to embrace their own,” said Matt Latimer, a speechwriter for President George W. Bush administration who briefly advised Newt Gingrich’s presidential campaign.

“Mr. Romney’s primary opponents warned all along that the governor’s own record on health care would make him a flawed candidate,” Mr Latimer said. “His campaign’s remarks today, totally undercutting the Republican line of attack on Obamacare, only prove that point.”

• Seth McLaughlin contributed to this report.

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