Romney and Obama agree: Health care law’s individual mandate is not a tax

Chris Moody

The Supreme Court last week upheld President Barack Obama's health care law because Chief Justice John Roberts' opinion considered the federal mandate to buy health insurance lawful under Congress' taxing power. But neither Mitt Romney nor Obama are buying it—for two different reasons.

Romney strategist Eric Fehrnstrom confirmed Monday that Romney disagreed with Roberts' decision to consider the individual mandate a tax, despite the fact that Republican groups and members of Congress are already running ads criticizing Obama for raising taxes through the health care law.

"The governor disagreed with the ruling of the court; he agreed with the dissent that was written by Justice Scalia, that very clearly said that the mandate was not a tax," Fehrnstrom said on "Daily Rundown," the MSNBC show. "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."

[Related: Could Republicans really repeal Obamacare?]

Both sides have been forced to tread a fine line in the debate on what to call the individual mandate. While pushing for the law before it was passed, Obama insisted that it was a penalty, not a tax. But during oral arguments in front of the Supreme Court in March, his solicitor general was sent to argue that it was a tax. Meanwhile, Romney cannot call it a tax either because doing so would open him up to attacks of hypocrisy because he oversaw the passage of a similar mandate while governor of Massachusetts. Romney insisted at the time—and continues to do so today—that his policy in Massachusetts was not a tax.

After Fehrnstrom's interview, Romney spokeswoman Amanda Henneberg released a statement saying Romney considers the mandate "an unconstitutional penalty."

[First person: 'I can't afford the insurance']

"The Supreme Court left President Obama with two choices: the federal individual mandate in Obamacare is either a constitutional tax or an unconstitutional penalty," Henneberg said. "Governor Romney thinks it is an unconstitutional penalty. What is President Obama's position: is his federal mandate unconstitutional or is it a tax?"

Of course, Romney avoiding the "T-word" won't stop many conservative nonprofits and super PACs that support his presidential bid from gladly calling the individual mandate a "tax."