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Romney breaks with GOP, says mandate is a penalty, not a tax

Mitt Romney's presidential campaign broke with congressional Republicans on Monday by arguing that the individual mandate upheld by the Supreme Court last week is a penalty, not a tax. 

The majority in the court's decision ruled it constitutional because it was a tax, and Republicans in Congress since that decision have hit the White House hard for raising taxes through the new law. 

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But a spokesman for Romney on Monday said the former Massachusetts governor agrees with Obama that the individual mandate is a penalty or a fine, rather than a tax.

In a roundabout exchange on MSNBC’s "Daily Rundown" on Monday, Eric Fehrnstrom was asked if he agrees with Obama that the individual mandate is not a tax.

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


In Romney’s initial statement on the decision, he emphasized that the law would raise taxes.

“ObamaCare raises taxes on the American people by $500 billion," he said immediately following the court’s ruling at a press conference across the street from the U.S. Capitol.

The Romney campaign says he wasn’t referring to the individual mandate with that comment, but over the weekend, Republicans ran with the message that with the individual mandate, Obama had finally been exposed for raising taxes on the middle class.

Democrats, sensing an advantage, seized on Fehrnstrom's remarks. 

The Democratic National Committee had video of Fehrnstrom's comments up on its YouTube page within the hour, and in a series of emails Democrats sought to bring attention to Fehrnstrom's comments.

Both the healthcare ruling and the conflicting statements highlight the trouble Romney has in going after the president on healthcare. As governor of Massachusetts, Romney instituted a healthcare law that includes an individual mandate, and at the time, he too portrayed it as a penalty or a fine, rather than a tax.

In fact, Fehrnstrom pointed out in his interview that Romney "has consistently described the mandate in Massachusetts as a penalty.” 

While Romney has been consistent, Fehrnstrom said, the president has portrayed the mandate in different ways depending on the politics of the situation.

“Let’s take a step back and look at what the president has said about ObamaCare,” Fehrnstrom said. “In order to get it past the Congress, he insisted, publicly and to the members of Congress, that the mandate was not a tax. After it passed the Congress, he sent the solicitor general up to the Supreme Court to argue that it was a tax. Now he’s back to arguing that it’s not a tax, so he’s all over the map.

“The governor disagreed with the ruling of the court; he agreed with the dissent that was written by Justice [Antonin] Scalia, that very clearly said that the mandate was not a tax,” Fehrnstrom said. “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.”

Over the weekend, Republicans had hammered the ruling as a tax. 

Appearing on ABC's "This Week" on Sunday, House Budget Committee Chairman Paul Ryan (R-Wis.) charged Obama with "hypocrisy."

"The president on your show said this is not a tax. Then he sent his solicitor general to the Supreme Court to argue that it is a tax in order to get this past the Supreme Court," Ryan said. "The broken promises and the hypocrisy are becoming breathtaking from the president who says one thing to get this past Congress and then another thing to get it past the Supreme Court. ... Believe me, if this was brought to the public as a tax, there's no way this law would have passed into law in the first place. That's what's so frustrating and disappointing with this law."

Meanwhile, Democrats defended the law as a penalty.

"It’s a penalty," House Minority Leader Nancy Pelosi (D-Calif.) said Sunday on "Meet the Press." "It's a penalty that comes under the tax code, for the 1 percent, perhaps, of the population who may decide that they're gonna be free riders." 

—This story was posted at 10:47 a.m. and last updated at 2:47 p.m.