Opinion: Columnists

SCOTUS decision puts Romney at odds with congressional GOP

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Chief Justice John Roberts' surprise decision to side with the liberal majority to uphold the individual mandate on taxing power grounds -- an argument that even liberal lower-court judges had rejected -- has scrambled both parties' health care strategies.

The decision has put Democrats in a rhetorical bind. If they insist that the requirement to purchase health insurance isn't a tax, then they implicitly admit it's unconstitutional. If they acknowledge that it is a tax, then they admit that Obama raised taxes on the middle class, in direct violation of his campaign promise.

Congressional Republicans were eager to take advantage of this vulnerability by attacking Obama for violating his pledge not to raise taxes on the middle class and highlighting the fact that Obama had repeatedly denied that the mandate was a tax. But their own bind may be even trickier.

Had Republicans chosen any other Republican as their presidential nominee, they would have a unified message on this front. But they nominated the one public executive other than Obama who actually signed an individual health insurance mandate into law.

Throughout his campaign, Romney has tried to get around the similarities between his Massachusetts health care law and Obama's national one by emphasizing that states should have more flexibility than the federal government on health care policy. That argument is fine as far as it goes, but it's much easier to make in the abstract than it is to argue that a federal mandate is a tax increase, whereas a state-level mandate is not a tax increase.

Faced with this dilemma, the Romney campaign has chosen to split its message from that of congressional Republicans. On Monday, senior Romney adviser Eric Fehrnstrom said, "The governor believes that what we put in place in Massachusetts was a penalty and he disagrees with the court's ruling that the mandate was a tax."

Fehrnstrom's comments undercut the message the GOP had been delivering in the days since last Thursday's Supreme Court verdict.

Speaking on the condition of anonymity, a GOP congressional aide said that the "whole party is coming to grips with" the reality of Romney as the nominee, and as the only remaining shot to repeal Obamacare.

The aide said the Massachusetts law will make it difficult for Romney to attack the Obamacare mandate as a tax, and sympathized with Fehrnstrom for "trying to walk a thin line on a talking point that he's trying to maintain for his boss."

"It just is what it is," the aide said of the competing messages between congressional Republicans and the Romney campaign. "He may want to take his own path for his own purposes, but that's not going to stop us from calling it a tax."

One way out of the bind for both Republicans and Romney may be to emphasize that whether or not the mandate qualifies as a tax, it's small relative to the overall tax increases in Obamacare. Last year, a Congressional Budget Office report found that the law would raise taxes by $813 billion from 2012 through 2021, which doesn't even account for the law being fully implemented.

In addition to the mandate penalties, there are the taxes on medical device manufactures and drug companies that will be passed on to consumers; the "Cadillac tax" on benefit-rich insurance plans; the Medicare payroll tax hike; the tax hike on investment income; and the tax increase on tanning salons, among other smaller taxes. None of those tax hikes were part of the Massachusetts law.

Romney's nomination makes it more difficult for Republicans to make a credible case against Obamacare, but his election is now the only remaining way to repeal it.

Philip Klein (pklein@washingtonexaminer.com) is a senior editorial writer for The Washington Examiner. Follow him on Twitter at @philipaklein.

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