To ObamaTax, or not to ObamaTax? That is the question

There has been some consternation over whether the Romney campaign went off-message by expressing qualifications about calling ObamaCare’s individual mandate a “tax.”  This began with top Romney advisor Eric Fehrnstrom giving an interview on MSNBC, which was widely reported as the Romney campaign “agreeing” with President Obama that the mandate is not a tax.

The editors of the Wall Street Journal thought they saw the wheels of Romney’s campaign train coming off the rails during this interview, going as far to declare, “If Mitt Romney loses his run for the White House, a turning point will have been his decision Monday to absolve President Obama of raising taxes on the middle class.  He is managing to turn the only possible silver lining in Chief Justice John Roberts’s ObamaCare salvage operation—that the mandate to buy insurance or pay a penalty is really a tax—into a second political defeat.”

But Fehrnstrom was actually quite clear about the substance of Romney’s criticism: he disagrees with the Supreme Court’s decision to magically transform ObamaCare into a tax, so it can survive Constitutional scrutiny.  ObamaCare should have been struck down by the Court for this reason… but it did survive, and it’s absurd to let Obama flacks get away with publicly denying the very essence of the decision that left America saddled with Obama’s health care disaster.  I happen to feel the same way, and so did the dissenting conservative justices of the Supreme Court.

Fehrnstrom’s big mistake on MSNBC was semantic: when the host asked if Romney “agrees with the president” about not calling the tax penalty a tax, Fehrnstrom replied, “That’s correct.”  Such errors should not be made in an era when political operations have mastered the art of clipping ten seconds out of an interview to completely invert its meaning.  This was not a trivial misstep, and it’s not terribly surprising that some political damage resulted, but there is a substantial difference between the performance of even high-ranking surrogates in TV interviews, and the pronouncements of the candidate himself.

Mitt Romney gave an interview on CBS’ “60 Minutes” on Wednesday, in which he made his position clear: “Well, the Supreme Court has the final word. And their final word is that Obamacare is a tax.  So it’s a tax. They decided it was constitutional.  So it is a tax and it’s constitutional.  That’s the final word.  That’s what it is.”

When his interviewer asked if this represented a shift in position, Romney replied, “I said that I agreed with the dissent, and the dissent made it very clear that they felt it was unconstitutional.  But the dissent lost. It’s in the minority. And so now the Supreme Court has spoken.  There’s no way around that. You can try and say you wished they would have decided in a different way, but they didn’t.  They concluded it was a tax.  That’s what it is.  And 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.”

Is this hair-splitting to protect Romney’s health-care program in Massachusetts from criticism?  Romney pointed out that Chief Justice John Roberts “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.”

Whether you find this argument inadequate or not – and I don’t think it’s a sufficiently powerful criticism of ObamaCare on its own – Romney has been making it consistently since the beginning of his campaign, every time the subject of health care in Massachusetts is raised.

It is possible for a campaign to make reasonable observations that turn out to be politically unhelpful, but if conservatives have accepted that stumbles from Romney spokesmen over-ride the words of the candidate himself, or that the principles of federalism should be discarded as meaningless trivia, this election is already over, and so is America’s existence as a constitutional republic.

Meanwhile, Obama’s flacks continue to loudly insist that ObamaCare is utterly unconstitutional, and should be struck down immediately.  The latest is national press secretary Ben LaBolt:

This is getting ridiculous.  At some point, Chief Justice John Roberts should come out of hiding and take responsibility for his decision… including the enforcement of logical, legal consequences if the Democrats continue their adamant refusal to accept it.