Mitt Romney Flip-Flops on ObamaCare–But So Does Everybody Else

Yes, Mitt Romney has shown incorrigible inconsistency on the mandate. Question is: Why should he be any different?


You know it's a slow week when a flip-flop by Mitt Romney leads the news. It's like reporting that somebody posted a status update on Facebook. On any given issue, Romney has more positions than a Craftmaticadjustable bed.

His latest tergiversation concerns health care. Again. This time he says the charge imposed by the Affordable Care Act on individuals who do not purchase insurance is a tax, not a penalty, because the Supreme Court says so. And he doesn't approve of that sort of thing, not one bit.

This is rich coming from Romney – who imposed in Massachusetts the very same insurance requirement he now denounces, using the very same arguments about personal responsibility that Democrats have been deploying the past few months.

Romney might have gotten his mandate idea from the Heritage Foundation, which first floated the idea in 1989, back when Barack Obama was still in law school. Many right-wingers later glommed onto the proposal as an alternative to Hillarycare. Some of them might even have thought it was a good idea at the time. Nothing like hearing your enemies adopt your position to make you change your mind.

Lately liberals have been heaping scorn on conservatives for their about-face on the mandate. This is further evidence that the team-sports approach to politics is largely an exercise in patting yourself on the back by punching the other guy in the face. After all, it's not as though the port side of the political spectrum has been a paragon of intellectual consistency either. In one breath, Democrats are praising the high court for upholding the mandate as a tax – and insisting it is not a tax at all in the next.

On Thursday, The New York Times reported that "the Obama campaign seized on Mr. Romney's words, calling it a glaring contradiction" of his previous stance. This is rich, too. Two seconds on Google will bring up video clips of candidate Barack Obama condemning the individual mandate as unworkable. If it were such a good idea, he scoffed in 2008, then we could solve homelessness simply "by mandating that everybody buy a house." Now the mandate is the cornerstone of his proudest first-term accomplishment.

But wait, it gets better. The Obama administration defended the constitutionality of the mandate under the Constitution's necessary-and-proper clause. The mandate was necessary, the administration argued, because without it people would wait until they got sick to buy insurance (since other provisions of the law guaranteed they could not be turned down). If that happened, then premiums would skyrocket, more people would forgo insurance until they got sick, and the industry would enter a death spiral. In short, the mandate was absolutely essential to making the other provisions of the ACA work.

The administration then turned around and said the mandate was not essential at all. One question before the Supreme Court asked whether the mandate was severable: that is, whether the rest of the law could remain standing if the mandate were struck down, or if the entire law would have to be discarded. The administration argued that the mandate it had just described as crucial to the law's function was indeed severable, and could be struck down without taking the rest of the ACA with it.

Since the Supreme Court upheld the mandate, that issue did not come up. But in upholding the mandate, the five-justice majority applied its own double standard.

The first question the Supremes had to answer asked whether the lawsuit to overturn the health-care law was premature under the Anti-Injunction Act. The  act stipulates that you cannot sue to prevent the collection of a tax; you can sue only after a tax has been imposed. But the mandate does not go into effect for another two years.

The court majority said the charge imposed by the mandate does not qualify as a tax. "The text of the [Anti-Injunction Act] applies to suits 'for the purpose of restraining the assessment or collection of any tax'," wrote Chief Justice John Roberts. "Congress, however, chose to describe the '[s]hared responsibility payment'… not as a 'tax,' but as a 'penalty'." And "that label is fatal to the application of the Anti-Injunction Act."

Then the high court turned around and said the individual mandate was a proper exercise of power under – wait for it – the congressional taxing authority. "It is of course true that the Act describes the payment as a 'penalty,' not a 'tax.' But while that label is fatal to the application of the Anti-Injunction Act … it does not determine whether the payment may be viewed as an exercise of Congress's taxing power." Oh.

During oral arguments, Justice Samuel Alito got a laugh when he needled the Obama administration's lawyer for pulling this very stunt. "Today you are arguing that the penalty is not a tax," Alito said to Solicitor General Donald Verrilli. "Tomorrow you are going to be back and you will be arguing the penalty is a tax." Well,Verrilli must be the one laughing now. It worked.

So, yes, Mitt Romney has shown incorrigible inconsistency on the mandate. Question is: Why should he be any different?