Romney advisor: You're right, the ObamaCare mandate isn't a tax

When you nominate the man responsible for RomneyCare, don’t be surprised if his team’s reluctant to embrace Roberts’s argument that a mandate is a tax. Even if everyone else in the party has spent the past five days happily rubbing The One’s face in it.

Over at, Joel Pollak urges Romney to get it together:

Fehrnstrom allowed Chuck Todd to push him off message–and re-ignited the fears that conservatives have long had about Romney’s will and ability to fight. In response, conservatives–who had just coalesced around opposition to what many now call “Obamatax”–exhort: Mitt, start fighting, or give up and let someone else do it.

Fehrnstrom’s point–in defense of Romneycare–was that the Supreme Court was wrong to uphold Obamacare under the taxing power. The individual mandate was never intended to be a tax, Congress never called it a tax, and it wasn’t a tax in Massachusetts, either. Fine–but now that Obama’s lawyers went to court and called it a tax, and Chief Justice John Roberts called it a tax (and spare us the non-distinction between “tax” and the “taxing power”) Obamacare is, undeniably, a massive tax on the middle class. Obama lied. It’s that simple.

The GOP primary is over, and this is not a mistake that Fehrnstrom can merely shake away. It’s going to be used–and already is being used–by the Obama campaign to save itself from the tax argument, and to label Romney as a liar (when that label belongs squarely on Obama, who campaigned against Hillary Clinton’s individual mandate in 2008).

Tom Maguire says Fehrnstrom should have fallen back on the federalism argument that Romney’s used in the past to distinguish a state program like RomneyCare from an unconstitutional federal power grab like ObamaCare. Would that still work, though? Now that the Court’s upheld O’s signature boondoggle, the “RomneyCare = legal, ObamaCare = illegal” defense doesn’t really fly. I’m not sure that it ever really did: The reason RomneyCare’s such a liability for Mitt isn’t because it’s constitutionally questionable but because it’s a hair-raising government expansion that ended up blazing a trail for O-Care. To me, Romney’s federalism indictment of ObamaCare always smacked of him saying to voters, “Don’t worry! Legally, as president, I couldn’t impose my Massachusetts plan on you even if I wanted to.” Um, great.

I think that argument’s even weaker when it comes to taxes just because alarms start going off in people’s heads at the mention of the word. Hard to think of federalism niceties when you’re focused on more money potentially being sucked out of your pocket. That said, though, Pollak’s right: I think you have to hit O on the “tax” charge even if Romney’s a terribly flawed messenger for it. It’s viscerally effective and you can count on most low-information voters not to know or learn that Romney had a little tax-penalty-mandate of his own in Massachusetts. If worse comes to worst, he can always claim that Massachusetts residents love to pay taxes — which isn’t strictly true, but is true enough that they keep electing Democrats — and that most Americans don’t, and he’ll govern accordingly. Unlike The One.

Two clips for you, one of advisor Eric Fehrnstrom and the other via NRO of Krauthammer urging Romney to be just as hypocritical about this as Obama and Democrats are. Exit quotation via Mitt spokeswoman Andrea Saul: “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?”