Michael Gaynor
Mitt Romney's right: Individual mandate's a penalty under Romneycare and a tax under Obamacare
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By Michael Gaynor
July 6, 2012

Romney did NOT perpetrate a bait and switch on the people of Massachusetts, but Team Obama perpetrated a bait and switch on the people of the United States.

Presumptive Republican presidential nominee Mitt Romney is right: the amount due for failure to obtain insurance coverage under Romneycare is a penalty, not a tax, and the amount due for failure to obtain insurance coverage under Obamacare is a tax, not a penalty.

Both the liberal media establishment and Romney's conservative critics have ignored the law and treated the amounts due for failure to obtain inusrance coverage under Romneycare and Obamacare as the same.

They are both amounts due, of course, but they are caluclated differently, and, much more importantly, the bases on which they are due are different.

That's because the United States Constitution and the Massachusetts Constitution are different.

The Massachusetts Constitution gives the Massachusetts government power that the United States Constitution does not give the federal government.

Eric Fehrnstrom, a senior adviser to Mitt Romney, said last Monday that he agrees with the Obama administration that the Obamacare individual mandate is a "penalty" and not a "tax."

Earlier an unnamed senior Romney adviser reportedly told 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.

Romney needs better advisers!

Romney himself later got it right: the individual mandate contained in President Barack Obama's health care law is a tax and not a penalty against those who refuse to buy coverage.

They can't be penalized under the Commerce Clause for not buying insurance, but they can be taxed for it, so ruled a bare Supreme Court majority of four well known liberal judicial activists and a Chief Justice who had pledged not to be one.

"I said that I agree with the [Supreme Court']s dissent, and the dissent made it very clear that they felt [the individual mandate] was unconstitutional," Romney said in a released clip of a CBS News interview. "But the dissent lost. It's in the minority. And now the Supreme Court has spoken. And while I agree with the dissent, that's taken over by the fact that the majority of the court said it's a tax, and therefore, it is a tax."

The individual mandate in Romneycare is NOT a tax (and never was proposed as a tax) because Article 6 of the Massachusetts Constitution authorizes "all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without; so as the same be not repugnant or contrary to this constitution, as...judge[d] to be for the good and welfare of this commonwealth, and for the government and ordering thereof, and of the subjects of the same...." (Emphasis added.)

Romney did NOT perpetrate a bait and switch on the people of Massachusetts, but Team Obama perpetrated a bait and switch on the people of the United States: first, the Obamacare individual mandate was justified as a penalty under the Commerce Clause and President Obama vehemently denied that it was as tax; then, rightly fearing that the Commerce Clause would not be held to authorize such a penalty for not obtaining insurance coverage (since it is limited to regulating commerce), the Obama Administration argued when the constitutionality of Obamacare was challenged in court that the Obamacare individual mandate really was a tax after all and five Justices of the United States Supreme Court agreed.

Like Romney, I agree with the dissent. But the majority opinion IS legally controlling and so the truth is that President Obama broke his campaign pledge not to raise taxes on the middle class by as much as a dime in order to enact Obamacare. Obamacare would not have been upheld unless the Obama Administration had not contradicted itself and claimed that the Obamacare individual mandate is a tax after all.

Governor Romney, you're not to blame.

Mr. President, have you no shame?

© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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