The Mandate Was Not a Tax': Mitt Romney Sides With Dissent in Obamacare Case

Those who have even cursory familiarity with the Constitution are aware that the province of raising taxes belongs to Congress. As such, the area of politics where most antitax work gets done is the arena of Congressional races, rather than in the Presidential race - that is, unless you have a case of rank betrayal, as was the case when George H. W. Bush went back on his "Read my lips, no new taxes" pledge.

Fortunately for Mitt Romney, he isn't running for Congress. He tried that already. Now he's the GOP nominee for President, and in the event that he wins, his only province over taxes will be the veto power, which he has already pledged to employ.

However, in the event that Romney becomes President, there is a much bigger question he will have to tackle - namely, the appointment of Supreme Court Justices when and if there is a vacancy on the Court. And given that the deciding vote in perhaps the most controversial case of the last decade - the Obamacare case - was cast by a Republican appointee, this duty is a potential minefield, especially considering that the Court's ruling declaring Obamacare a tax offers Romney's party a potent political weapon.

So what's Romney to do? Jump on the easy "It's a tax" line of attack, thus signaling that he agrees with the ruling by the Court, in order to score cheap political points, or repudiate the decision in its entirety, thus signaling that as President, he would only appoint ideologically reliable judges? In other words, will Romney take a position based on politics, or based on principle?

Well, in a choice that may surprise some people, Romney is going with principle, at least if the words of his surrogate Eric Fernstrohm are any guide. Fernstrohm recently spoke to MSNBC's Chuck Todd and said straight out that not only does his boss (Romney) not believe that the individual mandate is a tax, but he believes the Court got it wrong and Obamacare is still unconstitutional. Watch below:

A bit of reporting on what Fernstrohm said, and an abbreviated transcript, both follow, courtesy of Think Progress:

“The governor disagreed with the ruling of the Court,” Fehrnstrom said, “he agreed with the dissent, which was written by Justice Scalia, which very clearly stated that the mandate was not a tax”:

TODD: The governor does not believe the mandate is a tax — that’s what you’re saying?

FEHRNSTROM: The governor believes what we put in place in Massachusetts was a penalty and he disagrees with the Court’s ruling that the mandate was a tax. [...]

TODD: But he agrees with the president that it is not — and he believes that you should not call the tax penalty a tax, you should call it a penalty or a fee or a fine?

FEHRNSTROM: That’s correct. 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.

Now, before you get angry with Romney for passing up an easy attack line, think for a minute about what he's doing. The Democrats are doing everything in their power to avoid talking about the mandate as though it were a tax, and the RNC is doing its best to keep up the pressure on them in that department. However, by offering an out to the Democrats that says the mandate is a "penalty," Romney is basically forcing them to call the mandate unconstitutional, since the majority opinion in the Obamacare case made it quite clear that the only way Obamacare could be constitutional would be if it were a tax. In other words, Romney is both declaring his intention to nominate Justices like conservative hero Antonin Scalia, and laying a trap for the Obama administration to explicitly claim its landmark legislation, as written, is unconstitutional.