(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
Are these Republicans nuts? They do not know the difference between tax and penalty? If you are required to
insure your car which everybody is compelled to do, and you fail to do that, you get a penalty(boete in Dutch) which
is not a tax. And tax is something every citizen is required to pay whether you work or not because even those who
are not working receive money from the government, so every pays tax
In this case of the health care penalty, it is not everybody will pay it, only those who refuse to buy the health care
will pay for it which is a penalty and not a tax,.
To anyone complaining that this is a tax that has health insurance… this is like complaining about the high cost of green fees when you don’t golf. And to those same people, do you realize you are currently paying for those that are not insured via higher premiums and HC costs?
@Lobo – Even Romney agrees with Obama that it is a penalty, not a general tax. It is a penalty on those who CAN afford insurance but choose not to purchase it. For those that can't afford it – you will be assisted in getting it.
Fehnrstrom gets JERK OF THE YEAR award. Just what alexithymic Mitt needs-Murdoch is right, what is Mitt paying these idiots on Team Romney for?
Republicans lying again; "a tax on the middle class". really what it really is is a penalty or call it a tax if you want on only those who don't buy insurance and are financially able to afford it. You know those who go to the emgency room when they are sick so the rest of us end of paying for it... yea, i want them to pay for their care instead of me. As for Rubio, he will say anything in his quest for the vice presidency...thats why we in florida have lost faith in himl.
The republicans are misrepresenting the facts. The Healthcare reform law requires people to pay penalty only if they do not buy inusrance, any insurance of their choice so that they do not become a burden on the public. The truth of the matter is that there is "tax" involved either way: if we have the healthcare reform law, those who refuse to buy inusrance pay tax; if w edo not have the reform law, those who pay taxes and have insurance pay additional taxes. Therefore, it is not a question of paying taxes, it is a question of which is fair and more responsible on one hand, and more effective and efficient on the other.
Clearly, having those who refuse to buy inusrance deceases total system cost of healthcare and asks a small fraction of people to pay this tax. Therefore, healthcare reform law is the best one to use at this time.
Thus, when the republicans think of this issue rationally, they would come to the same conclusion and pehaps stop making false statements to make people afraid.
Drug giant GlaxoSmithKline will pay $3bn (£1.9bn) in the largest health care fraud settlement in US history in a case concerning three drugs.
The GOP and deregulation and Big Pharma Lobby. How hard will this hit Romney and friends stock porfollio ?
Romney and the Flip Flop Lobby 2013.
Tax or Penalty.. how does it matter? ACA stays..
Willard once even proposed withholding tax rebates on those who would not take personal responsibility...or even taking away their freedoms - no drivers license renewals unless they had their health insurance proof. Yup big gubmint Willard at your service. Willard is going to lose big-time.
Fehrnstorm's compensation should be charged to Obama.
I am not worried. obama shoved this down our throats when a majority of Americans did not want it. The Republicans will do the right thing and get rid of it.
It's time to move forward. We do not want to continue talking about healthcare for the next 2 years. GOP is just mad because healthcare wasn't solved under their leadership and they have no desire trying to cover 30 million people
@anagram_kid YES! Well stated.
What's with the propaganda on middle class taxes for healthcare? No one is taxed for their healthcare insurance under "Obamacare". The freeloaders without healthcare who use our hospitals and ERs, and thereby raise healthcare costs for us all, have to face a pealty if they don't buy health insurance. I would think that is about as balanced and just for all of us middle class who have healthcare as we could get!
Uhhh.....Yes it is. DId he not hear the Supreme Court's ruling? Maybe he needs to listen a bit instead of talking so much.
The Republican Propaganda machine works overtime to change the definitions of things that they can't fight by being truthful. They've re-named torture, the idle rich and countless other things so calling a penalty that perhaps 1% of the population will end up paying a "middle-class tax increase" is just more Newspeak from the Republican's New Abridged Dictionary for Oligarchs.
"Even Romney agrees with Obama that it is a penalty, not a general tax. It is a penalty on those who CAN afford insurance but choose not to purchase it. For those that can't afford it – you will be assisted in getting it."
Where does the "assistance" come from? The government, right? Where does the government get the money it's going to use to "assist"? From those that pay taxes. So everyone who pays taxes got their taxes raised.
One can argue with the merits of the law and whether it is good or bad policy, but to call it a tax is simply wrong.
Obviously we need Mittens to explain how he viewed his individual mandate when he passed Romneycare in Massachussetts-tax or penalty.