Obama and Romney: In or Out of the 'Penalty' Box?

A campaign season traditionally pans out to be a choice between the words "left" and "right."

Thanks to the summertime Supreme Court decision on the fate of ObamaCare, this run for the White House and Congress is shaping up to be about "penalty" vs. "tax."

In upholding the individual mandate of President Obama's healthcare law, the majority rejected the argument of ObamaCare challengers that it violated the commerce clause. Instead, wrote Chief Justice John Roberts in the decision, the fee assessed to those who don't buy health insurance "looks like a tax in many respects."

"The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the (Internal Revenue Service) through the normal means of taxation," Roberts wrote.

And herein each side found their own small victory -- and rhetorical challenges.

Obama and the left were overjoyed that their signature domestic project would stand. But the mandate stood on the basis that it's a tax, and Obama had denied that the fee for violating the mandate was a tax: "For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase," Obama told ABC's George Stephanopoulos in 2009. "Nobody considers that a tax increase. …My critics say everything is a tax increase."

It's a penalty, the White House has since argued in the court of public opinion, even to the point of campaign spokesman Ben LaBolt affirming on CNN today that his boss doesn't agree with the Supreme Court that handed him a policy victory -- if not in campaign-friendly terms, a victory nonetheless.

Congressional Republicans, while expressing their disappointment and acknowledging that the repeal of ObamaCare is now up to them, seized on the taxation language as proof of what they've claimed all along -- it's a blatant tax hike. A repeal vote should happen in the House on Wednesday.

But Mitt Romney's campaign was a bit more wobbly on the messaging. Eric Fehrnstrom, a senior adviser to Romney, said Monday on MSNBC that "the governor has consistently described the mandate as a penalty."

Fehrnstrom was also the source of the famous primary "Etch A Sketch" comment, the adviser on Romney's gubernatorial campaign when he ran as a pro-choice candidate in liberal Massachusetts, and the spokesman who helped ease Romney back to pro-life territory.

Two days of GOP fury ensued over the comment before Romney sat down with a CBS correspondent and came out of the penalty box.

"The Supreme Court has the final word. And their final word is that Obamacare is a tax. So it's a tax. They decided it was constitutional. So it is a tax and it's constitutional. That's the final word. That's what it is," Romney said.

The interview, though, highlighted another challenge the Romney camp faces since the Supreme Court decision: history. As governor, Romney's healthcare plan, like ObamaCare, imposed a fee on people who could afford health insurance but chose not to buy it.

"The governor believes that what we put in place in Massachusetts was a penalty and he disagrees with the court's ruling that the mandate was a tax," Fehrnstrom said in that MSNBC interview, striking at the heart of the uncomfortable position in which the Romney camp now finds itself.

In the CBS interview, Romney was asked if the Massachusetts mandate then meant that he raised taxes as a governor.

"Actually the chief justice, in his opinion, made it very clear that at the state level, states have the power to put in place mandates. They don't need to require them to be called taxes in order for them to be constitutional," Romney said. "And as a result, Massachusetts' mandate was a mandate, was a penalty, was described that way by the legislature and by me. And so it stays as it was."

And the Obama camp is seizing on that like never before, touting the former governor as a healthcare mandate trailblazer who gave birth to the revolutionary reforms but is now keeping his head down in the clutches of the right.