The Romney spokesflacks won't be helping out health care debate if they persist in raising my blood pressure:
A spokesman for Mitt Romney said the former Massachusetts governor agrees with President Obama that the individual mandate upheld by the Supreme Court last week is a penalty or a fine, rather than a tax.
In a roundabout exchange on MSNBC’s Daily Rundown on Monday, Eric Fehrnstrom was asked if he agrees with Obama that the individual mandate is not a tax.
“That’s correct,” Fehrnstrom said. “But the president also needs to be held accountable for his contradictory statements. He has described it variously as a penalty and as a tax. He needs to reconcile those two very different statements."
A bit later, we get something like an explanation:
But the ruling and the conflicting statements highlights the trouble Romney has in going after the president on healthcare. As governor of Massachusetts, Romney instituted a healthcare law that includes an individual mandate, and at the time, he too portrayed it as a penalty or a fine, rather than a tax.
“The governor has consistently described the mandate in Massachusetts as a penalty,” Fehrnstrom said, but criticized the president for portraying the mandate in different ways depending on the politics of the situation.
Foir heaven's sake! We have a Federal government of Constitutionally enumerated powers and it is quite clear from the Tenth Amendment that powers not given to the Feds are reserved to the states or to the people. The point being, as governor of Massachusetts Romney was operating under different, and in some ways broader, power than the President of the United States. A state's "police powers" are described at the bottom of p. 7 here.
A state governor can impose a penalty for the failure to buy health insurance; people who don't like that can vote agaisnt the governor or leave the state. A similar penalty at the Federal level could not be justfied (per the new Roberts ruling) under the Commerce Clause.
Romney has a perfectly plausible limited government state's rights case to make here.
If the penalty for failure to acquire suitable insurance will be a tax, then, it is argued, the requirement to acquire insurance, the mandate, will itself be a valid exercise of the taxing power. If that’s right, it certainly isn’t obviously so. Since almost everything the national government does is funded through taxation, that understanding would lead to a conception of congressional power that is effectively unlimited, and the Taxing Clause would trump almost all other grants of congressional power in Article I, section 8.
That theme is expounded in the paper:
Because almost everything the national government does is supported by taxation, with that understanding the Constitution would provide almost no limitations on congressional power. Moreover, the taxing clause would render almost all the rest of Article I, section 8 of the Constitution surplusage. Why were all those other powers enumerated if they are trumped by the taxing clause? Why should we care, for example, whether Congress is regulating commerce, if it’s using funds raised through taxation to do the regulating? Why did the founders specify the power ‘‘to raise and support Armies’’ if the taxing clause would have sufficed? The taxing clause by itself would make Congress nearly all-powerful.
LATE UPDATE: Hmm, The Minuteman Gets Results:
UPDATE II: In longer interview excerpts released by the Romney campaign, the Republican candidate argues that there's a distinction between a state mandate and a federal mandate when it comes to taxation. The Supreme Court said the federal government can only impose a mandate as a tax, Romney argues, but that doesn't mean a state mandate has to be defined as a tax.