Sen. Mike Lee (R-Utah) backed up a top Mitt Romney adviser -- and the Obama administration -- on Wednesday, saying he does not personally believe the individual mandate at the heart of the Affordable Care Act is a tax. But now that the Supreme Court has ruled that it is one, he believes it's fair game as a political attack.
"The Supreme Court said it was a tax. I don't think it was a tax,” Lee told CNSNews.com. “Congress didn’t think it was a tax. The president assured us that it wasn't a tax. There's nothing about the text or the structure of the Affordable Care Act that suggests it was a tax. But the Supreme Court concluded that it was."
Lee's stance isn't entirely surprising, since he once served as a clerk for Supreme Court Justice Samuel Alito, who was part of the dissent that ruled that individual mandate was unconstitutional, period. Chief Justice John Roberts, writing for the majority, ruled that the mandate was constitutional not under the Commerce Clause but under Congress' power to levy taxes.
It's also in line with statements made by top Romney adviser Eric Fehrnstrom on Monday, when he said the campaign believes that not complying with the mandate results in a penalty, not a tax.
Nevertheless, Lee used the Supreme Court's definition to attack President Barack Obama last week, arguing on Fox News immediately after the court's ruling that he had raised taxes.
"[M]ost Americans who don’t like the individual mandate already will like it even less when they understand that it's a tax," said Lee. "This is a huge boon to the campaign of Mitt Romney. The American people will be flocking around him saying, we don't want new taxes. We especially don't want new taxes on the poor, and that’s what this does."
The rest of the Republican Party is largely staying on message and attacking Obama as a tax-raiser. New Jersey Gov. Chris Christie, another prominent Romney surrogate, said the mandate was a tax during an interview on "Fox and Friends" on Tuesday morning.
Romney's signature health care reform legislation in Massachusetts also had an individual mandate, which could be construed as a tax. But defining that law as containing a tax increase is something the presumptive GOP presidential nominee wants to avoid.
Lee's spokesman told CNSNews.com that Obama is the one in the "pickle."
"If it's a tax, then he’s raising taxes on people," Lee's spokesman said. "If it's not a tax, then it’s unconstitutional."