A quick recap: The high court found the law constitutional because the individual mandate central to the law includes what the court considers a "tax" on some people who don't buy health insurance - and Congress has the constitutional right to levy taxes. Suddenly deprived of their argument that the law is unconstitutional, Republicans switched their messaging, pointing to that finding to argue that President Obama had forced a massive tax increase on the American people.
The problem? The health care law Romney passed when he was governor of Massachusetts also included a "tax," by the Supreme Court's reasoning, on those who choose not to buy health care. It was even bigger, in fact, than the "tax" in the Obama-backed health care law. As Norah O'Donell put it to House Speaker John Boehner on Sunday's "Face the Nation": "The facts are that the penalty in Massachusetts under Mitt Romney for not buying health insurance was twelve hundred dollars. The penalty under the president's health care law at its highest rate would be about seven hundred dollars. The Massachusetts tax penalty was more restrictive and more punitive than the president's."
Romney not only signed off on the penalty, or tax, but even argued for it in print, writing in a 2009 op-ed: "[W]e established incentives for those who were uninsured to buy insurance. Using tax penalties, as we did, or tax credits, as others have proposed, encourages 'free riders' to take responsibility for themselves rather than pass their medical costs on to others." So in arguing that Mr. Obama is a massive tax raiser, Republicans are rather inconveniently arguing their presumptive presidential nominee is one as well.
The White House has countered Republicans' claims that the mandate represents a tax hike by maintaining that it includes a "penalty" - not a "tax" - on the 1-2 percent of so-called "free-riders" who choose not to pay for health care. This morning on MSNBC, the Romney campaign made the same argument - effectively siding with the Obama administration over the Republican Party.
"The governor disagreed with the ruling of the court," Romney's senior adviser Eric Fehrnstrom said. "He agreed with the dissent that was written by Justice [Antonin] Scalia, which very clearly stated that the mandate was not a tax." Fehrnstrom later repeated: "The governor believes that what we put in place in Massachusetts was a penalty and he disagrees with the court's ruling that the mandate was a tax."
Fehrnstrom also said that "the governor has consistently described the mandate as a penalty." He went on to argue that the difference between Romney and the president is that the president did not take that position from the start.
"Let's take a step back and look at what the President has said about Obamacare," he said. "In order to get it past the Congress, he insisted publicly and to the members of Congress that the mandate was not a tax. After it passed the Congress, he sent his solicitor general up to court to argue that it was a tax. Now he is back to arguing that it's not a tax. So he's all over the map."