Romney caught between tax and constitution

2012-07-06 07:30

Simon Williamson

The Patient Protection and Affordable Care Act (PPAC Act, colloquially known as Obamacare) was supposed to be the death knell for US President Barack Obama’s re-election chances. So united was the opposition against it, which cleared 50% in polls, Obama was going to be beaten over the head with healthcare throughout his campaign.
 
Opponents of the PPAC Act were more than disappointed at the Supreme Court declaring it constitutional last week, but they may have still sought out their figurehead to stand for them and raise spirits. For example, in another recurring instance, Republicans have been using the Supreme Court’s Roe vs Wade ruling (which outlawed states preventing abortion) to whip up fervour among supporters for 40 years.
 
For poor old Mitt, the reasons he hasn’t effectively poked his umbrella at Obamacare are numerous.
 
For starters, he was the author of the inspiration to the bill. When Romney was governor of Massachusetts he instilled healthcare reform in the state, which included an individual mandate to buy health insurance if you could afford it and penalties via the tax system if you didn’t (precisely the most controversial aspect of Obama’s plan).
 
Authority to tax

Now, Justice John Roberts provided the swing vote in the Supreme Court’s 5-4 decision to rule the bill constitutional, and he upheld Obama’s healthcare plan precisely because it is within the federal government’s authority to tax.

Remember, penalties for not purchasing health insurance are done through the tax system. You can decry the merits of this, but it is how it currently stands in American law. And the Supreme Court’s mandate is not to judge whether bills are good or bad, but whether or not they flout the constitution. In this case, it is the government that has the authority to tax, and this particular bill was passed by both houses of congress. So all the Is were dotted and the Ts crossed from a legal standpoint.
 
Which left Romney with two options.
 
Firstly, he could declare that the penalties were a tax, and therefore Obama was raising taxes on American citizens, which he has sworn not to do. Rising or new taxes in Republican land are bad, bad, bad, especially when enacted by Democrats. Implicitly, though, he is then agreeing that the law is constitutional, and admitting to raising taxes (by a Republican governor nogal) during his tenure at the top of Massachusetts. Romney keeps saying that his version of the law didn’t involve raising taxes, but there are enough video clips of him referring to his own law’s penalties as taxes to make that moot. And whether he says it or not, the penalties were done through the state’s taxation system.
 
Secondly, he could claim the penalties are actually not a tax (incidentally, then agreeing with the Obama campaign) and just a penalty, thereby removing Republicans greatest weapon in the fight against Obamacare. It is nice and easy to be able to rant that Obama’s commie socialist Indonesian healthcare plan is going to involve raising taxes, and all the ramifications therein, but if Romney won’t play ball for the reasons listed above, this closes that particular avenue of argument.

Romney has, thus far, decided to take both, with one of his closest advisors, Eric Fehrnstrom claiming Romney agreed with Obama that the penalty should not be regarded as a tax. On the other hand, on Thursday, after discovering his party’s glee at bashing Democrats with another tax-and-spend club, Romney told CBS: “They concluded [The PPAC Act] was a tax. That's what it is. And the American people know that President Obama has broken the pledge he made. He said he wouldn't raise taxes on middle-income Americans ... It's now clear that his mandate, as described by the Supreme Court, is a tax.”

Tricky territory

He then proceeded to deny that his Massachusetts plan was the same thing. (To be clear, however, governors do have the power to implement mandates whereas the president doesn’t have that power constitutionalised, which is why Romney beat off legal challenges to his health reform act with ease, compared to the long slog for Obama).
 
What’s also making this tricky territory for the Republican candidate is that independent voters are seemingly no longer militant about the issue. According to a poll by the Kaiser Family Foundation, which interviewed over 1 200 folks, independents (who are, admittedly, notoriously difficult to poll) favoured Republicans now dropping their repeal efforts against the bill.

The PPAAC Act has run its course through congress and the courts, and has been found to be valid. Enough swing-voting Americans support the institutions for this to become a crooked floor on which Romney needs to dance: his base, who he needs, is screaming for repeal. Independents and swing voters, who he needs, are not.
 
While the options for the Republican presidential mantle were rather thin this election cycle, those who predicted Romney would struggle with the Obamacare battle (such as Rick Santorum) will rightly be patting each other on the back.

Simon Williamson is a freelance writer.

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