Fehrnstrom bucks Republican line on 'Obamacare' as 'tax'
Romney confers with his senior adviser, Eric Fehrnstrom.
July 2nd, 2012
12:45 PM ET
2 years ago

Fehrnstrom bucks Republican line on 'Obamacare' as 'tax'

(CNN) – In the wake of last week's Supreme Court decision on President Barack Obama's health care law, a senior adviser to Mitt Romney's presidential campaign parted with Republican talking points Monday, arguing the mandate that most individuals obtain health coverage or pay a government fine is "not a tax."

The high court on Thursday found the individual unconstitutional under Congress' ability to regulate commerce, but constitutional under Congress' taxation power, language Republicans seized on in criticism of the law. Since the ruling, Democrats have maintained that it is not a tax, but a penalty.

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Eric Fehrnstrom, in an interview on MSNBC, said Romney agrees with President Obama that the individual mandate is no tax.

"He agreed with the dissent written by Justice Scalia which very clearly stated that the mandate was not a tax," Fehrnstrom said.

When pressed repeatedly if Romney agrees with Obama and Democrats that the penalty is no tax, Fehrnstrom eventually said, "That's correct."

Fehrnstrom came to national attention earlier this year during the Republican primaries when he referred to the eventual switch to a general election campaign as being like an Etch-A-Sketch where you can shake it and start over. The remark created a firestorm as Romney's Republican primary opponents pointed to it saying that he would not stand firm in his conservative policy positions if he won the nomination.

Many Republicans, however, disagree with Fehrnstrom on "tax" versus "penalty."

"This is a middle-class tax increase," Sen. Marco Rubio of Florida told CNN's Candy Crowley hours after the decision. "And you know why we know it's a middle class tax increase? Not because I'm saying it, because the Supreme Court has said. It's the basis for them upholding it. I think Americans now understand what this law really is all about."

House Budget Committee chairman Paul Ryan also called it a tax, and criticized the logic behind the court's majority opinion.

"I agree with the dissenting judges. I think they basically had to rewrite the statute in order to call this a tax," Ryan said Sunday on ABC News' "This Week."

Previously, Romney has defended the law he signed when governor of Massachusetts, called by some Romneycare, which included a similar individual mandate on a state level. While Republicans have been vocal about pointing to the penalty being termed a tax, his campaign has been careful to avoid being drawn into a comparison on the point.

And in reaction to Fehrnstrom's comments Monday the campaign focused on whether the national health care law is constitutional.

"The Supreme Court left President Obama with two choices: the federal individual mandate in Obamacare is either a constitutional tax or an unconstitutional penalty. Governor Romney thinks it is an unconstitutional penalty. What is President Obama's position: is his federal mandate unconstitutional or is it a tax?" Romney campaign spokewsoman Amanda Henneberg said.

Rick Santorum, one of Romney's former rivals for the GOP presidential nomination, said Thursday on CNN's "Piers Morgan Tonight" that both Romney's and Obama's laws include an individual mandate tax.

"They have a series of problems with people who decide to take the tax, in other words, pay the fine, instead of buying insurance, because it's actually cheaper, particularly younger and healthier people who - who are dropping out of the health care system," he said of the Massachusetts case.

Santorum and other Republicans have been critical of the Massachusetts law, which Romney has defended as a state solution which was valid under the state's constitution, but not an appropriate national fix to expanding insurance coverage.

The matter of whether or not the national individual mandate is a tax has implications beyond what language is used in an election year.

Republicans, including Rep. Phil Gingrey of Georgia, argue that the ruling makes their effort to repeal the law easier because tax laws are not subject to filibuster in the Senate, which requires 60 votes to overcome.

The Senate can "do it by reconciliation since it's a tax issue now, as Justice Roberts has redefined the law," Price said on CNN's "Starting Point" Friday morning.

On Sunday morning, Obama's White House chief of staff explained the subtle distinction Democrats used to argue the law was not a tax.

"Well, actually, they didn't call it a tax," Jack Lew said on CNN's "State of the Union." "They said it was using a power under the Constitution that permits it. It was not labeled.

"And this is a penalty. It's something that only one percent of the people who could afford insurance who choose not to get it will pay," Lew continued.

Stephanie Cutter, Obama's deputy campaign manager, said Friday on CNN's Starting Point argued it was not a tax, but a penalty, saying "if you choose not to get health care and you're imposing a hidden tax on all of us because we pay for your health care, then you pay a penalty."

While campaigning in 2008, Obama said the health law would not result in a tax increase.

"If you are a family making less than $250,000 a year, you will not see your taxes go up," Obama said.

The Supreme Court found that, "the federal government does not have the power to order people to buy health insurance."

"The federal government does have the power to impose a tax on those without health insurance," Chief Justice John Roberts wrote in the majority opinion.

– CNN Political Producer Shawna Shepherd contributed to this report


Filed under: 2012 • Health care • Mitt Romney
soundoff (44 Responses)
  1. Ben

    It's not a tax...it's a tax credit. You pay less in taxes if you have health insurance.

    This is the basic problem with Democrats. They can't spin anything. If a Republican had proposed and passed this, they'd have the whole country thinking they got a tax cut.

    July 2, 2012 12:49 pm at 12:49 pm |
  2. Rick 7809

    "This is a middle-class tax increase," Sen. Marco Rubio of Florida. Sen. Rubio, I am employed with health care insurance and I am in the middle class. Why is this law a "tax increase" for me?

    July 2, 2012 12:50 pm at 12:50 pm |
  3. cropp

    its a tax

    July 2, 2012 12:53 pm at 12:53 pm |
  4. Wire Palladin, S. F.

    Wow! Forcing deadbeats and freeloaders to pay for their own healthcare under the ACA has really fired up the GOP. Yet, congressional republicans have no problem using tax payer money to pay for their healthcare insurance.

    July 2, 2012 12:54 pm at 12:54 pm |
  5. manhandler1

    So now, the Repulicans have a real problem on their hands. Their rank and file have already attacked the "tax" part and now their candidate comes out and says it isn't. Romney can't etch a sketch this one away. Again. he's painted himself into a corner.

    July 2, 2012 12:56 pm at 12:56 pm |
  6. mm

    No issue here. Romney has already made it loud & clear – The mandate is a penalty and not a tax.

    Both sides agree, no matter which candidate you vote for. It is a penalty, not a general tax.

    July 2, 2012 12:59 pm at 12:59 pm |
  7. winky

    So santorum says It's a fine! Then says It's a tax make your mind up!

    July 2, 2012 01:00 pm at 1:00 pm |
  8. Joi Gibson

    Wonder how long it will be before Eric says his comment was "taken out of context." And it keeps being reported that Williard said his healthcare was only for Massachusetts, when in fact, he also said it could be a national model and Washington could learn from his plan. When will a journalist call him out on that particular nugget. And BTW, what happen to the Republican mantra of personal responsibility.

    OBAMA/BIDEN/FIRST LADY MICHELLE 2012!!!

    July 2, 2012 01:01 pm at 1:01 pm |
  9. Rudy NYC

    Of course, he had to declare the fee was not a tax. Not doing so would mean that Mitt Romney *raised* taxes on the people of MA. It would mean yet another high profile flip-flop 5 months before the election. I guess their political risk calculations came up with "fee", instead of "tax". Too bad for them that is is line with Obama administration.

    July 2, 2012 01:05 pm at 1:05 pm |
  10. Dean

    Fehrnstrom is ignorant of the SCOTUS ruling. The individual mandate IS as tax...that is the reason it is now a law.

    July 2, 2012 01:09 pm at 1:09 pm |
  11. Al-NY,NY

    today...."It's not a tax." Tomorrow....(after getting a call from Rush).."It's a tax"

    July 2, 2012 01:11 pm at 1:11 pm |
  12. Governor 47th in Job Creation (excluding jobs off-shored to China)

    First etch a sketch, now it's not a tax. Fehrnstrom is doing great work for Willard.
    We have now successfully removed that talking point from the GOP playbook of lies. Not a tax. It's a penalty or a mandate, no more free-riders. Heritage Foundation for the win.

    July 2, 2012 01:11 pm at 1:11 pm |
  13. Rudy NYC

    from the article:

    Santorum and other Republicans have been critical of the Massachusetts law, which Romney has defended as a state solution which was valid under the state's constitution, but not an appropriate national fix to expanding insurance coverage.
    --------------
    If the Romney campaign feels that it is not a good model for a "national fix", than that is complete contradiction of Romeny's 2009 op-ed cynically suggesting that then anti-mandate Pres. Obama use the MA law as a model for a national program.

    July 2, 2012 01:12 pm at 1:12 pm |
  14. bill.x

    republicans don't know what it is. we know it as good health law for the middle class.

    July 2, 2012 01:16 pm at 1:16 pm |
  15. lolo

    Liar, Liar, pants on fire and the republicans need to carry a fire extinguisher with them at all times. They have become a fire hazard to the American people.

    July 2, 2012 01:18 pm at 1:18 pm |
  16. independent

    These guys are such bozos. How many Americans can tell the difference between a penalty, which is within the Tax Code, and a tax, which is in the Tax Code? This is not a tax, but it falls within the tax law. The IRS has lots of penalties which are not taxes, but they fall under the Tax Law.

    Late payment, late filing, frivolous fiing, early retirement distributions, excess contributions, surplus contributions, these are all IRS penalties. They are fall under the Tax Code. Are the penalties or taxes?

    July 2, 2012 01:19 pm at 1:19 pm |
  17. Anonymous

    lol Mitt and his GWB advisors dont know what the they are doing. Bye bye Mitt

    July 2, 2012 01:21 pm at 1:21 pm |
  18. Laverne

    By the time the evening political news, he will have a different spin because of all the pressure from republicans!

    July 2, 2012 01:22 pm at 1:22 pm |
  19. kate

    Here is one for Romney and the GOPers. How are we paying for G.W.Bush's wars? We will be paying for that for a long time through taxes. That money would go along way paying for health insurance.

    July 2, 2012 01:25 pm at 1:25 pm |
  20. Rudy NYC

    The only reason the IRS is collecting the fine is because it would a waste to create another branch of government with the infrastructure to collect fines from law breakers. The Roberts opinion makes every fine or fee that we pay the government a "tax".

    July 2, 2012 01:30 pm at 1:30 pm |
  21. MNTaxpayer

    It's a tax. It's a penalty. It's a GOP red herring.

    July 2, 2012 01:30 pm at 1:30 pm |
  22. MTATL67

    Clearly even some Republican's see through the part's desperate and pathetic rhetoric.

    July 2, 2012 01:31 pm at 1:31 pm |
  23. Chipster

    The Supremes did NOT decide the penalty is a tax. The ruling was stated clearly that the power to tax gives Congress the power to require the penalty for failing to have health insurance if you can afford it. People have a choice. They can purchase insurance or they can pay the penalty. It is not a tax on income, goods or services. It is a penalty for failing to have coverage that you can afford. Taxpayers are tired of paying hundreds of thousands of dollars for treating people for emergency room visits because they can't go to the doctor without paying or having insurance. So make your choice. Get health insurance if you can afford it or pay a penalty!

    July 2, 2012 01:32 pm at 1:32 pm |
  24. mm

    Both Romney and Obama agree – The mandate is not a tax but a penalty. Even if you define though the tax code – it is not a general tax on the population, but a penalty tax on the freeloaders on the system. Which is a good thing.

    July 2, 2012 01:36 pm at 1:36 pm |
  25. Lobo

    Its a tax! when this so called president creates me a job then the feds can tax me. if you dont help me dont expect me to help you. so give me a JOB then we talk. until that happens go tax a green card carrying immigrant.

    July 2, 2012 01:37 pm at 1:37 pm |
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