Huffpost Politics

Eric Fehrnstrom, Mitt Romney Adviser: Individual Mandate Is A 'Penalty,' Not A 'Tax'

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Eric Fehrnstrom, a senior adviser to Mitt Romney, admitted Monday that he actually agrees with the Obama administration on something: the individual mandate in the Affordable Care Act is a "penalty" and not a "tax."

Since the Supreme Court upheld President Barack Obama's health care law but ruled that its mandate is a tax, Republicans have criticized him for imposing a massive tax on the American public.

The Romney campaign joined in this line of attack, with an adviser telling The Huffington Post's Jon Ward that the Supreme Court's ruling would help them politically.

"Frankly, to be able to tell you your taxes have been raised by this bill and you didn't know that, as opposed to trying to explain Congress's powers under the commerce clause, it's easier," the Romney adviser said, referencing the issue of the law's constitutionality.

But in a Monday interview on MSNBC's "The Daily Rundown," Fehrnstrom contradicted this statement, agreeing with the Obama administration that the mandate is a "penalty" on individuals who do not purchase insurance -- not a tax.

"[T]he governor has consistently described the mandate as a penalty," said Fehrnstrom. "Let's take a step back and look at what the president has said about Obamacare. 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 his solicitor general up to court to argue that it was a tax. Now he is back to arguing that it's not a tax. So he’s all over the map."

The tax line is uncomfortable for Romney, whose signature health care reform legislation in Massachusetts also had an individual mandate and could therefore be construed as a tax -- a definition the presumptive GOP presidential nominee wants to avoid.

Fehrnstrom, in his MSNBC interview, tried to focus on accusing the Obama administration of flip-flopping on whether the mandate is a tax or a penalty. But host Chuck Todd continued to press Fehrnstrom, finally getting him to admit that he agrees with the Obama administration:

TODD: It sounds like Governor Romney though agrees that it’s not a tax. So what you just said is that Governor Romney agrees that it’s not a tax. You guys called it a tax?

FEHRNSTROM: The governor disagreed with the ruling of the court. He agreed with the dissent written by Justice Scalia which very clearly stated that the mandate was not a tax.

TODD: Okay. Which -- so I guess -- we're -- I think we're talking around each other. The governor does not believe the mandate is a tax? That is what you're saying?

FEHRNSTROM: The governor believes that what we put in place in Massachusetts was a penalty and he disagrees with the court's ruling that the mandate was a tax.

TODD: But he agrees with the president that it is not -- and he believes that you should not call the tax penalty a tax, you should call it a penalty or a fee or a fine?

FEHRNSTROM: That's correct.

Obama Deputy Campaign Manager Stephanie Cutter quickly tweeted after the interview, "Well, that clears it up.@EricFehrn says on @dailyrundown that Mitt agrees with the Pres. on mandate as a penalty, not a tax, for freeriders."

In a follow-up email, Romney spokeswoman Amanda Henneberg argued that the Obama is the one who needs to clarify his position.

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

This article was updated with a comment from a spokeswoman for Romney.

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