The contortionists impress, until they twist again. Then the crowd goes “Awww.” On Tuesday, I tried to explain all the knots both Barack Obama and Mitt Romney had tied as they tried to bend with the political winds on the individual mandate, a provision that requires all citizens to get health insurance under both politicians’ past health care reforms.
I noted that Romney had argued that the same individual mandate could be a good idea on the state level and an abomination on the federal level, even though he had previously praised efforts to impose a federal mandate. But I did not see the next twist coming. It’s a masterpiece worthy of serious contemplation.
First, to set the scene: On Monday, Eric Fehrnstrom, Romney’s longtime aide, told MSNBC’s Chuck Todd that Romney continued to believe that the mandate was not a tax. This put Romney at odds with his own party leadership, but kept him consistent with his past statements about the Massachusetts mandate. Here’s the tape:
TODD: [Mitt Romney] agrees with the president that it is not [a tax], and he believes that you shouldn’t call the tax penalty a tax, you should call it a penalty or a fee or a fine?
FEHRNSTROM: That’s correct.
On Wednesday, Romney reversed course. “Well, the Supreme Court has the final word and their final word is that Obamacare is a tax. So it’s a tax,” Romney told CBS News. “The American people know that President Obama has broken the pledge he made. He said he wouldn’t raise taxes on middle-income Americans. 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.”
If Romney stopped there, this would just be a flip flop. But what Romney actually did was far more artful. He continued to argue that the identical mandate he supported on the state level was not a tax, because the Supreme Court did not call it a tax. Furthermore, his campaign argued that Fehrnstrom on Monday and Romney on Wednesday were in agreement. Here is more from Romney:
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. 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.
In other words, a duck is a duck unless it’s a goose because the Supreme Court has not weighed in on whether it is a duck or not. The Supreme Court won’t be weighing in on whether Romney’s logic passes muster, but it’s hard to imagine that Chief Justice John Roberts would agree.
There are two questions at play here: Is an individual mandate allowed? And is it a tax? On the first question, the Supreme Court said it was allowed, on both the state and federal level, for different reasons. (On the state level it is allowed, because state’s have broad powers to do stuff like that, and on the federal level it is allowed because of the federal taxing power.)
On the second question, the Supreme Court said the federal mandate was a tax, and was silent on whether the identical state mandate was a tax. (Both the state and the federal mandates penalize people of means who choose not to get health insurance through the tax code.) Romney interprets this to mean that the state mandate is not a tax, allowing him to deny that he ever raised taxes in Massachusetts, while at the same time arguing that Obama raised taxes on the middle class with a tax.
It is worth noting that Justice Roberts had made it clear that he saw through the political contortions around the tax question. In oral arguments, he had this exchange with Solicitor General Donald Verrilli:
CHIEF JUSTICE ROBERTS: Why didn’t Congress call it a tax, then?
GENERAL VERRILLI: Well -
CHIEF JUSTICE ROBERTS: You’re telling me they thought of it as a tax, they defended it on the tax power. Why didn’t they say it was a tax?
GENERAL VERRILLI: They might have thought, Your Honor, that calling it a penalty as they did would make it more effective in accomplishing its objectives. But it is in the Internal Revenue Code, it is collected by the IRS on April 15th. I don’t think this is a situation in which you can say -
CHIEF JUSTICE ROBERTS: Well, that’s the reason. They thought it might be more effective if they called it a penalty.
In other words, Roberts is quite comfortable with the idea of politicians saying something is not a tax when it is a tax for reasons that are beyond the court’s purview. That is what Romney appears to be doing again here. (In the past, he has been pretty clear that his state mandate was a tax, noting in one 2010 interview that the penalty for not getting insurance was “a higher tax rate.”)
As politics, Romney’s approach depends on voters not thinking too hard about what he is saying. As a contortion, it is masterful.