If It Walks Like a Tax and Quacks Like a Tax

Never look a gift tax in the mouth, especially if it may have just saved your presidency.

That’s what you’d think President Obama’s reaction would be to the life line (sorry for the mixed metaphors) Chief Justice John Roberts extended to him last week when he voted with the Supreme Court’s four liberals to uphold the individual mandate to buy health insurance and, thus, the entire Affordable Care Act.

In a Solomonic decision, the Chief Justice sided with conservatives in finding that the individual mandate was unconstitutional on the basis of the Commerce clause (Congress’s power to “regulate Commerce…among the Several States…”) but then ruled that it was constitutional under Congress’s taxing power.

That was originally a throw-away argument made by Solicitor General Donald Verrelli Jr. during oral arguments on the law in March. The four liberal Justices may have seized upon it to persuade the Chief Justice to uphold the Act.

But the president and his Republican opponent Mitt Romney have run like thieves from the Supreme Court’s ruling. Democrats continue to claim it’s a penalty, not a tax, even though that’s precisely what let it pass Constitutional muster.

White House Chief of Staff Jack Lew with Chris Wallace on Fox News Sunday.

Check out this exchange between White House chief of staff Jack Lew and Chris Wallace on Fox News Sunday:

LEW:  What the Supreme Court said was this was constitutional. They said it didn’t matter what Congress called it. It was a penalty for 1 percent…

WALLACE: Mr. Lew, they called it a tax.

LEW: No, actually, technically what they said is the Congress has many powers. There is the commerce clause, there’s taxing powers and it was constitutional. That’s what they said. It doesn’t matter what they call it.

WALLACE: I can’t let you go there. It specifically said that it is not constitutional under the commerce clause; they said it is constitutional under the tax…Mr. Lew, if it walks, looks and quacks like a duck, it’s a duck.

LEW: One of the things about our judicial system is that you can make arguments to the court on multiple grounds. That is what [the Solicitor General] was doing. He was saying there were a lot of ways to look at this.

See what I mean?

But after his initial reaction last week, Romney hasn’t done much better with this issue. Here’s his senior campaign adviser Eric Fehrnstrom on MSNBC’s The Daily Rundown Monday:

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.

An astonished Chuck Todd asked him if Gov. Romney agreed with the president, and Fehrnstrom said, well, yes:

That’s correct. But the president also needs to be held accountable for his contradictory statements because he has described it variously as a penalty and as a tax, he needs to reconcile those two very different statements.

Romney advisor Eric Fehrnstrom on MSNBC’s The Daily Rundown.

This should be a big issue for Republicans but it’s proving toxic for both sides. The president can’t admit he’s actually raising taxes, even though that helped him get the unpopular law through the Supreme Court.

And Mitt Romney can’t run on this issue because after all, his law in Massachusetts was the model for Obamacare, with a big fat tax—er, penalty—for people who don’t sign up for health insurance. So, he can ask Republicans to vote for him because he’ll repeal Obamacare, but he has no credibility on this  with anyone else.

That’s why these candidates will ignore one of the Court’s most monumental decisions in years and move on to other things—like Romney’s tenure at Bain Capital and the president’s record on the economy, less taxing issues for both of them.

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