Tax? Penalty? How about both?

Some people are arguing that “the mandate is not a tax,” but a requirement with a penalty for disobedience. Of course, the Supreme Court has decreed that it is a tax, and that is the only basis on which its constitutionality could be uphold. So which is true?

It is interesting to note, as Alex Becker posted on the Huffington Post blog, that the Massachusetts state government website, the only place where a similar mandate is state law, describes it as a “tax penalty”:

Starting July 1st, 2007, all Massachusetts residents age 18 and over must have health insurance. Every year, you will need to show proof of health insurance on your state income tax return. If you do not have health insurance, you will face a stiff tax penalty. For the 2007 tax year, this penalty is the loss of your personal exemption. In later years, it could be up to 50% of the amount of the cheapest health insurance plan offered through the Commonwealth Connector. If you need to buy health insurance, many new health plans are now available.

In fact, when Mitt Romney originally implemented the Massachusetts law, he well could have believed that it did not constitute a tax, though the State certainly uses that term to describe it now. And it is perfectly reasonable for him to believe, as his aide Eric Fehrnstrom stated, that it is not a tax, and that therefore the PPACA is unconstitutional. Basically, Mitt Romney has a right to his opinions on such matters, just as there are people who believe that Roe v. Wade was wrongly decided, and others think the same of Bush v. Gore. (My own candidate for “terrible Supreme Court decision” is Heller v. District of Columbia.) If elected President, of course, he will have to conform with the Constitution as the Supreme Court has interpreted it, but there is no danger of his failing to do just that. Romney's comments, issued more recently on a CBS news interview program, make this absolutely clear:

The Supreme Court has spoken, and while I agreed 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. They have spoken. There’s no way around that,

I said that I agreed with the dissent, and the dissent made it very clear that they felt it was unconstitutional, but the dissent lost – it’s in the minority.

(…)

You can try and say you wish [the court] had decided a different way, but they didn’t. They concluded it 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, and not only did he raise the $500 billion that was already in the bill, it’s now clear that his mandate, as described by the Supreme Court, is a tax.

I think this is exactly the kind of stance a candidate for the Presidency needs to take: whatever he believed, the Supreme Court's decision is the law of the land, unless changed by (1) a Constitutional amendment, or (2) a new Supreme Court revisiting the issue. Mitt Romney is saying exactly the right thing here.