- The Washington Times - Thursday, July 5, 2012

President Obama defiantly insisted Thursday that his health care law is “here to stay” — and so, apparently, is the controversy over whether the massive plan is enforced by a penalty or a tax.

After watching Mitt Romney’s campaign stumble for much of this week over that question, Mr. Obama and his advisers are now facing the same questions as they try to grapple with the individual mandate and the Supreme Court’s ruling that it is, indeed, a “tax.”

Both the White House press secretary and Mr. Obama’s campaign spokesman said Thursday that the president still does not think the mandate requiring all Americans to obtain insurance is backed by a tax — though his top constitutional lawyer, Solicitor General Donald B. Verrilli Jr., argued just that position successfully to the Supreme Court.

“This is clearly a penalty that affects less than 1 percent of the American population. And it is a penalty you only pay as a matter of choice,” said White House press secretary Jay Carney.

For Mr. Obama, who taught constitutional law at the University of Chicago, the disagreement between his campaign and his Justice Department over the tax-or-penalty issue is just beginning to develop.

For Mr. Romney, it’s been a troublesome issue since he signed an individual mandate into state law as governor of Massachusetts in 2006. He has been reluctant to label that mandate a tax because it would mean he raised taxes during his time there rather than just the “fee” increases he claims on the campaign trail.

Likewise, Republicans say if the mandate is a tax, it means the president has raised taxes on the middle class, breaking his own pledges.

A five-justice majority on the Supreme Court said the individual mandate was constitutional because it was enacted pursuant to Congress’s broad taxing powers.

Initially Mr. Romney’s campaign disagreed, with a top spokesman saying Mr. Romney agreed with Mr. Obama that it is a penalty. But on Wednesday, Mr. Romney personally reversed that stance.

The Obama camp, however, still maintains it’s a penalty.

Mr. Carney told reporters traveling with the president aboard Air Force One that the mandate doesn’t count as a tax or, at the very least, is not a major tax in the way most Americans think of paying income taxes.

“It is simply a fallacy to say this is a broad-based tax,” he said.

The White House said Mr. Romney himself agreed with that reading for years, arguing that he only caved to conservative pressure this week.

In the wake of last week’s ruling, congressional Republicans had spent days laying the groundwork for an all-out assault on Mr. Obama over the tax issue. Senate Minority Leader Mitch McConnell twice took to the floor of the chamber to say the Supreme Court’s final word is a tax.

Polling since the ruling has showed voters about evenly split on whether the court made the right decision.

• Susan Crabtree can be reached at scrabtree@washingtontimes.com.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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