In awkward agreement, Mitt Romney backs President Obama’s contention that health care mandate is not a tax

By Callum Borchers, Globe Correspondent

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Mitt Romney’s campaign added one more spin Monday to the dizzying debate over what to call money owed to the government by people who flout the national health care law’s individual insurance mandate.

Romney spokesman Eric Fehrnstrom said the presumptive Republican presidential nominee agrees with the Obama administration’s insistence that the “shared responsibility payment,” as it is called in the Affordable Care Act, should be described as a penalty, or a fee, or a fine -- but not a tax. Romney’s gripe, Fehrnstrom said, is that the president changed his tune when the time came to defend the health care law before the Supreme Court.

“After it passed the Congress, he sent his solicitor general up to court to argue that it was a tax,” Fehrnstrom said during an interview on MSNBC. “Now he is back to arguing that it’s not a tax. So he’s all over the map.”

There are two problems with the Romney campaign’s line of attack: It puts the candidate out of step with other GOP leaders, and it opens him up to charges of hypocrisy -- Romney, too, has called the payment a tax at times.

The semantics of the shared responsibility payment are significant because it was Chief Justice John Roberts’s determination that the payment is, in fact, a tax and that saved the health care law from invalidation.

“The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause,” Roberts wrote for the majority in a 5-to-4 decision last week. “That clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax.”

Top Republicans have claimed Roberts’s reasoning as a small victory: Obama won, they say, but only with an argument that contradicted his public rhetoric.

“The president had tried to [argue] for over a year that it wasn’t a tax, and nobody believed it and now we know it,” House Speaker John Boehner said Sunday during an interview on CBS.

But Fehrnstrom said Monday that Romney does believe Obama when he says the payment is not a tax -- and that Romney maintains the same position on the individual health insurance mandate he championed as governor of Massachusetts.

“The governor believes that what we put in place in Massachusetts was a penalty, and he disagrees with the court’s ruling that the [federal] mandate was a tax,” Fehrnstrom said.

At another point in the interview, Fehrnstrom said “the governor has consistently described the mandate as a penalty.”

In fact, Romney has not been so consistent.

During a Republican presidential debate in 2008, Romney agreed with moderator Charles Gibson when he characterized the payment made by Massachusetts residents who refuse to obtain health insurance a tax.

“Governor, you imposed tax penalties in Massachusetts for people who don’t buy it,” Gibson said.

“Yeah,” Romney replied. “We said, look, if people can afford to buy it, either buy the insurance or pay your own way; don’t be free-riders and pass on the cost of your health care to everybody else.”

And in an op-ed published in USA Today in 2009, before the national health care law passed, Romney used the word “tax” when describing what federal lawmakers could learn from Massachusetts.

“Using tax penalties, as we did, or tax credits, as others have proposed, encourages ‘free riders’ to take responsibility for themselves rather than pass their medical costs on to others,” Romney wrote.