Not A Mere Technical Misunderstanding


Two days ago, Mitt Romney adviser Rick Fehrnstrom maintained 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."     Similarly, campaign spokesperson (or perhaps campaign "spoke," if a chairperson is neither a chairman nor a chairwoman but a "chair") Andrea Saul asserted the boss "thinks [the mandate] is an unconstitutional penalty" rather than a tax.   Now, the former Massachusetts governor in an interview with CBS argues

I said that I agree with the [Supreme Court']s dissent, and the dissent made it very clear that they felt [the individual mandate] was unconstitutional. But the dissent lost. It's in the minority. And now the Supreme Court has spoken. And while I agree 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.

Asked why, if the mandate is a tax under the PPACA, it isn't also a tax as part of health care reform he signed into law as Massachusetts governor, Romney responded

Actually the chief justice in his opinion made it very clear that at the state level, states have the power to put in place mandates.    They don’t need to require them to be called taxes in order for them to be constitutional. And as a result, Massachusetts’ mandate was a mandate, was a penalty, was described that way by the legislature and by me, and so it stays as it was.

Only Mitt Romney ever has questioned whether the fee which Justice Roberts decreed is constitutional under the taxing authority of Congress, rather than the commerce clause, is a "mandate."    A tax may also be a mandate, as in this case; it is something required by a public entity.

Romney further claims the "Massachusetts' mandate was a penalty, was described that way by the legislature and by me, and so it stays as it was."    But the fee in the PPACA itself never was termed a "tax" by either the chief executive (the President, analogous to the Governor) nor by Congress (here analogous to the state legislature).       It nevertheless has been interpreted by the Supreme Court as a tax, while Mitt Romney is claiming the same thing in Massachusetts is not a tax.

If Romney is to insist the mandated penalty is a tax, it is unsurprising that he would claim "the majority of the court said it's a tax, and therefore, it is a tax."

Well, no.    The mandate may be a tax (although I don't think it is).   But if it is a tax, it became a tax once the law was approved.   While it is now considered a tax for legal purposes, it did not magically become a tax when the Supreme Court decreed it a tax- nor does it become a tax because the Supreme Court says it is so.     It's an awful and trite cliche, but applicable:  "it is what it is" and is not what someone or some court says it is.

There is a parallel in another issue.   Mitt Romney has recommended the Supreme Court overturn its decision in Roe v. Wade and returning to states the right to impose onerous abortion restrictions.    Presumably, he would not believe that the 1973 ruling  in itself makes state anti-abortion action unconstitutional; otherwise, his call for the Court to reverse its decision would be tantamount to asking the Court to violate the Constitution    Whether with abortion or the health care mandate, the High Court's decision is legally binding but does not in and of itself make something constitutional or not; the Court can be wrong.    In 1896, for instance, racial segregation was (wrongly) deemed constitutional.   When the Supreme Court ruled otherwise in 1954, it was not because the U.S. Constitution had in the intervening years magically changed its wording, or the Founders their intent.  

Whether anti-abortion activists are right, they believe (legitimately, though not necessarily justifiably) Roe v. Wade was a faulty reading of the Constitution.   They contend states do have the right (under the Constitution) to legislate more freely in the matter of reproductive freedom.       Addressing the mandate, the presumptive GOP presidential nominee says the opposite:   the Court says it and it therefore is true.

Mere semantics, one might say.    Or John Roberts might say:  tax, not penalty.

           
                                              HAPPY INDEPENDENCE DAY





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