- The Washington Times - Wednesday, July 4, 2012

Undercutting what his top adviser said two days ago, Mitt Romney on Wednesday flatly stated that President Obama’s individual mandate, which the Supreme Court upheld last week, is indeed “a tax.”

“The Supreme Court has spoken and while I agreed with the dissent, that’s taken over by the fact that the majority of the court said it’s a tax, and therefore it is a tax. They have spoken. There’s no way around that,” the presumptive Republican presidential nominee told CBS News in an exclusive interview.

Mr. Romney was referring to the court’s 5-4 ruling that largely upheld the 2010 health care overhaul, the president’s signature legislative accomplishment, and labeled the law’s individual mandate a tax.

“I said that I agreed with the dissent, and the dissent made it very clear that they felt it was unconstitutional,” Mr. Romney said. “But the dissent lost - it’s in the minority.”

Wednesday’s explanation seemed to contradict comments that senior Romney adviser Eric Fehrnstrom made Monday, when he said Mr. Romney “agreed with the dissent written by Justice [Antonin] Scalia, which very clearly stated that the mandate was not a tax.”

Those remarks sparked a firestorm of protest among Republican Party leaders and supporters who felt Mr. Romney was failing to seize on a golden opportunity to cast the 2010 health care law as a massive tax increase and undercutting the aggressive attacks already being laid out by Republican leaders in Congress.

Just hours after the high court’s ruling, Republicans hit the airwaves seeking to brand the health care law as a tax increase but quickly found themselves in a precarious position after Mr. Romney did not firmly back them up.

The individual mandate and conservative Republicans’ disdain for it are creating serious headaches for Mr. Romney, whose campaign has struggled to find a credible way to defend the health care legislation he approved as Massachusetts governor while criticizing the Obama administration’s health care law.

As a candidate who has opposed any tax increases, Mr. Romney has leaned on the 10th Amendment to the Constitution, which gives states all powers not granted to the federal government. Mr. Romney has relied on the ability of governors to tax on a mandate under “police powers” - a distinction Supreme Court Chief Justice John G. Roberts Jr. pointed out in his opinion.

During her Wednesday interview with Mr. Romney, CBS News’ Jan Crawford pressed him on whether he had flip-flopped on calling the mandate a tax. Mr. Romney responded by arguing that Mr. Obama was the one who had changed his tune on the health care law.

“You can try and say you wish [the court] had decided a different way, but they didn’t,” Mr. Romney said. “They concluded it was a tax; that’s what it is. And the American people know that President Obama has broken the pledge he made. He said he wouldn’t raise taxes on middle-income Americans, and not only did he raise the $500 billion that was already in the bill, it’s now clear that his mandate, as described by the Supreme Court, is a tax.”

Mr. Romney refused, however, to concede that the health care law he signed into law while serving as Massachusetts governor was a tax. “Massachusetts’ mandate was a mandate, was a penalty, was described that way by the Legislature and by me, and so it stays as it was,” Mr. Romney said.

Chief Justice Roberts made it clear, Mr. Romney said, in the majority opinion that, unlike the federal government, states don’t have to refer to mandates as taxes in order for them to be constitutional.
The full interview was set to air Wednesday evening and Thursday morning on CBS.

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 Mr. Obama’s mandate a tax. The stance put him on the opposite side of the issue from Mr. Fehrnstrom.

• Seth McLaughlin contributed to this report.

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