Is the “individual mandate” in the Affordable Care Act (“ObamaCare”) a penalty, or a tax?  Over at NRO ‘s Bench Memos, I’ve been offering a defense of Chief Justice Roberts’ decision to read it as an exercise of the taxing power, not of the commerce power—a decision he made in the name of judicial restraint, since he himself said that the commerce-power reading of the statute was the most “straightforward” and natural.  (See all my most recent posts since June 29 here .)  Meanwhile, at Public Discourse , Joel Alicea and Carson Holloway have published essays that situate Roberts’ decision in the conservative tradition of judicial restraint.  (See also Ed Whelan’s judicious response to Alicea.)  Even if one remains unpersuaded by Roberts’ reasoning, it’s hard to claim with any degree of confidence that the chief justice was behaving “politically” either in some noble “statesmanlike” sense or in a lower “running scared from the Democrats” sense, both of which have been widely mooted in commentary on Roberts.  The reasons he gave in his opinion are good enough to be the only reasons he needed.

One thing is quite sure, however.  Unintentionally, I’m certain, Chief Justice Roberts threw a monkey wrench into the gears of the presidential campaigns.  And I have to say the Obama side has reacted more adroitly.   When the health care law was being debated, the Obama administration and congressional Democrats, for the most part, denied that the “individual mandate” to buy health insurance was a tax.  No, it’s an obligation placed on individuals under the commerce power, with a “penalty” that just happens to be collected by the IRS.  When the case came before the Supreme Court, the commerce-power argument was front and center, and the taxing-power rationale was offered in the alternative, as a fallback position.  (This is exactly how the chief justice treated it, as did the four conservative dissenters.  They differed only on whether it was a fallback position that worked.)  Now that the law has been upheld on taxing-power grounds, the Obama administration has been happy to pocket the victory, but has reverted to insisting that the penalty to be paid by individuals without health insurance is not a tax.  For this succession of positions, the White House has been excoriated by conservatives like Marc Thiessen .  But since there were four justices willing to view the mandate as an exercise of the commerce power and uphold it, and four justices preferring to view it as an exercise of the commerce power and strike it down, and even Chief Justice Roberts (with his deciding vote) viewed it as most naturally read as an exercise of the commerce power, I cannot find much fault with Obama and the Democrats for insisting that it is best understood . . .  as an exercise of the commerce power!  Why are they bound by a Supreme Court decision (turning on one justice’s adoption of an alternative reading) to affirm that the mandate imposes a tax?

Though Thiessen and others on the right happily use the tu quoque to argue that Obama is worse than Romney in this affair, the case against Romney seems much more easily made.  (Believe me, I take no pleasure in saying that.)  Here the hijinks begin with Romney advisor Eric Ferhnstrom’s remarks to an interviewer on July 1 that his candidate disagreed with the Supreme Court decision that the mandate imposed a tax, and agreed with the dissenters that it was in fact a penalty.  Since “RomneyCare” in Massachusetts also came up in the interview, with Ferhnstrom affirming that the state’s mandate carried a penalty for noncompliance, not a tax, a great many commentators assumed that his remarks were made in a defensive crouch, fearful of saying that ObamaCare imposes a tax because then it could be said that RomneyCare did too—and that Governor Romney raised taxes in Massachusetts.

But the cry went up that Ferhnstrom was throwing away a great opportunity to slam the president for a tax increase.  Forget RomneyCare, just go after Obama for raising taxes!  Within a few days Romney did just that.  By July 4, the governor was staking out a position described this way by the Washington Post

Romney said he disagrees with the court’s ruling, and aides said he still thinks the individual mandate is an “unconstitutional penalty,” but he said he accepts that the court’s majority opinion is now the law of the land.

“The Supreme Court has the final word, and their final word is that Obamacare is a tax,” Romney told CBS. “So it’s a tax. They decided it was constitutional. So it is a tax, and it’s constitutional.”

Later, Romney said: “While I agreed with the dissent, that’s taken over by the fact that the majority of the court said it’s a tax, and therefore it is a tax. They have spoken. There is no way around that.”

In the Romney camp, one must now hold these ideas in one’s head simultaneously: 1) the individual mandate is an “unconstitutional penalty; 2) therefore the Court’s ruling was wrong, and the dissent was correct; 3) but the Court has spoken, and what it says is the “law of the land”; 4) therefore the mandate’s penalty is really a tax; 5) so the president has been responsible for a tax increase; 6) and as for the highly similar situation in Massachusetts under RomneyCare, we’re just not going to talk about it.

(Mona Charen has given the Romney camp advice on how to talk about RomneyCare, and it’s pretty good advice too.  But there’s a reason Romney will never take it, for I doubt very much that at this point he could bring himself to say, as Charen does, that “it was a mistake for Romney to sign the bill” creating the “reform” that has ever since afflicted Massachusetts health care.)

I don’t quite know what Lincoln, who fashioned a surpassingly subtle yet forceful critique of the Dred Scott decision, would say about the posture Romney has now struck on the Court’s ObamaCare decision.  “I think it was wrong but I will predicate an entire critique of the president on the premise that it was correct.”  But it’s Obama who is supposed to be spinning something here?  Either Gov. Romney believes the Supreme Court can remake reality with its rulings, or he has a reflexive and uncritical attachment to judicial supremacy.  Neither possibility speaks well of him, and the third possibility—that a string of sentences making the most of a political opportunity should be uttered for its own sake, even if incoherent—is not so good either.

I think the “Obama’s health care plan raised taxes” claim, coming from people who are mad as heck at Chief Justice Roberts for giving them the opportunity to say so, is a tactic that gives opportunism a bad name.  And for what immediate or long-term advantage?  President Obama will be defeated, if he is defeated, over much larger issues—including the overall monstrosity of ObamaCare—than whether the “individual mandate” raises taxes on a few million people who don’t purchase health insurance.


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