Romney Adviser Seems To Undercut GOP Health Care Tax Argument

There apparently isn't a unified Republican message on whether President Obama has introduced a big new tax through the Affordable Care Act.

Eric Fehrnstrom, a top aide to Mitt Romney, said Monday that the Republican presidential candidate's position is that the penalty under the new law — the one for people who can afford to buy health insurance, but don't — is not a tax.

The Supreme Court last week upheld the health care law's individual mandate on the grounds that it is a permissible tax, in a 5-4 opinion authored by Chief Justice John Roberts.

Asked by NBC News' Chuck Todd how Romney and his advisers described the money individuals had to pay for failing to buy insurance under the Massachusetts health care law Romney signed as governor, Fehrnstrom said it also was a "penalty" — not a tax — and that Romney had always classified it as such.

Romney's response immediately after Thursday's ruling was in line with the dissent embraced by four of the high court's conservatives, Fehrnstrom said:

"The governor disagreed with the ruling of the court. He agreed with the dissent that was written by Justice Scalia, which very clearly stated that the mandate was not a tax."

Thus, Romney and Obama appear to share the same view, at least on calling the enforcement provision of the individual mandate a penalty, not a tax.

Democrats have defended Obama against conservative attacks that his signature health care law will raise taxes on the middle class when the individual mandate takes effect in 2014 by saying, one, it's not a tax; and two, if it is, then Romney imposed a similar tax as Massachusetts governor.

And who better for Romney to cite for support than Justice Antonin Scalia, a conservative icon?

By saying he doesn't accept Roberts' ruling that the individual mandate enforcement mechanism is a tax (and therefore constitutional), Romney not only ties himself to Scalia — he distances himself from Roberts. And the chief justice has become increasingly unpopular in some conservative circles since Thursday's ruling.

Still, Romney's word choice throws an obstacle in front of conservatives who have indicated they intend to criticize Obama, from now until Election Day, for imposing a new tax.

And when congressional Republicans and other conservatives charge that the individual mandate contains a new tax, their claims could be dampened somewhat when the man atop November's Republican ballot says it doesn't.

Democrats, as you'd expect, wasted little time pointing out Fehrnstrom's comments.

But conservatives are highlighting evidence of discomfiture among Democrats over Roberts' individual-mandate-equals-tax equation.

The Hot Air blog pointed out, as others have, an appearance by Rep. Nancy Pelosi, the House Democratic leader from California, on NBC's Meet The Press on Sunday. At one point, Pelosi seemed about to refer to the "penalty" as a "tax" — but pulled back from it in mid-thought.

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