Mitt Romney has gotten himself into another jam. The verbally
dexterous Republican nominee has decided to not just to call a
spade a spade, but to call the federal individual mandate to buy
health insurance a tax.
“While I agreed with the dissent, that’s overtaken by the fact
that the majority of the Court said it’s a tax and therefore it is
a tax,” Romney told CBS News
this week. “They have spoken. There’s no way around that.” Nothing
Mitt can do about it being a tax. It’s John Roberts’ world and
we’re just living in it.
Well, there’s one thing Mitt can do: castigate Barack Obama for
imposing such a tax on the middle class. And castigate he properly
did: “The American people know that President Obama has broken the
pledge he made — said he wouldn’t raise taxes on middle-income
Americans.”
This proclamation directly contradicted senior Romney aide Eric
Fehrnstrom, who told the same network that the mandate was a
penalty rather than a tax. While this was widely criticized as a
gaffe even among Romney supporters, Fehrnstrom was plainly trying
to do two things. First, align his characterization of the mandate
with the Supreme Court justices who said it did not fall under
Congress’ constitutional power to tax. Second, insulate his boss
from charges of raising taxes as governor of Massachusetts, when he
signed an individual mandate into law.
Romney nevertheless decided to go there, as the kids say: while
Obama’s mandate was a tax, his state-level mandate was not.
“Actually, the chief justice in his opinion made it very clear that
at the state level, states have the power to put in place
mandates,” Romney explained. “They don’t need to require them to be
called taxes in order for them to be constitutional. And as a
result, 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.”
But congressional Democrats and the president called the federal
mandate a penalty, and still do. Romney explained that states have
police powers and the federal government does not, so federal
mandates can only be found constitutional with trickery not
required of state-level mandates. “And therefore Obamacare’s a
tax,” Romney concluded. “Like it or not, it’s a tax.”
For those acquainted with the finer points of constitutional
law, there’s something to this federalist distinction. And the
absurdity is as much the Supreme Court’s as it is Romney’s. But the
vast majority of Americans will have little patience for such
nuances. To them, the Obama campaign’s response may well make more
sense.
“First, [Romney] threw his top aide Eric Fehrnstrom under the
bus by changing his campaign’s position and calling the free rider
penalty in the President’s health care law — which requires
those who can afford it to buy insurance — a tax,” team Obama said
in a statement. “Second, he contradicted himself by saying his own
Massachusetts mandate wasn’t a tax — but, Romney has called the
individual mandate he implemented in Massachusetts a tax many times
before. Glad we cleared all that up.”
There is one way to clear all this up. Romney should disavow his
past support for the mandate, even at the state level. This is the
one option that will allow him a clean shot at Obamacare without
unconvincing verbal gymnastics about the Massachusetts health care
law.
Romney hasn’t done this yet for two reasons. The first is that
he still wants to claim credit for passing a bipartisan health care
reform law in Massachusetts, one of his signature domestic policy
successes. The second is that he doesn’t want to add to his already
lengthy list of policy flip-flops or the public perception of
insincerity that goes with it.
But Romney wouldn’t be the only candidate who flip-flopped on
the individual mandate. Barack Obama opposed it in 2008 and
actually made one of the pithiest arguments against it: “If a
mandate was the solution, we could try that to solve homelessness
by mandating everybody buy a house.”
Both candidates would then have flip-flopped on the mandate. But
Romney will have moved toward a majority of the American people —
as well as Obama’s 2008 position — while his opponent has moved
away. Romney could simply say he tried mandates in Massachusetts as
part of the federalist laboratory of democracy, they didn’t work,
and he unlike the president had learned from his mistake.
This wouldn’t necessarily require Romney to repudiate his effort
to reform health care entirely. He can still use it as an example
of his concern about the uninsured, his desire for universal
coverage, and his ability to reach across the aisle in working with
an 87 percent Democratic legislature. Oh, and it was that
legislature that took his original
proposal that the uninsured post a bond to finance their care
and turned it into an individual mandate.
It won’t change the past. The Obama campaign can dredge up his
numerous old defenses of the Massachusetts mandate, plus some hints
that he might have been open to a federal one. But the battle lines
will finally be clearly drawn: There is one candidate who judges
the mandate a failure and opposes it. There is a second candidate
who defends the mandate and wants to keep it.
Then there is virtually no criticism Obama can make of Romney’s
health care record in Massachusetts that doesn’t implicate his own
policy. And Romney will finally be free to point to rising costs in
the Bay State as evidence Obamacare is likely to fail at the
national level.
Flip-flops have hurt Romney in the past because they have made
him look like a phony. But here it is Romney’s current position
that makes him look phony, while sounding stubborn and incoherent
to boot. This is one Romney position where a long overdue change
would do him good.
