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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.

White House press secretary Jay Carney mentioned Romney's healthcare mandate in meetings with the press corps today and Friday, and Obama's new campaign spokeswoman debuted with Carney at the press gaggle en route to Ohio today with the same message.

"For years, Mitt Romney has been defending not only his bill that he pushed forward in Massachusetts but also this as a penalty that was essential to taking into account the people who weren’t paying for health insurance who could afford it. The president agreed with him," said press secretary Jen Psaki, adding "it’s clear that he is being impacted by the push from the right, the Rush Limbaughs of the world, congressional Republicans, who are pushing him to go back on a decision and a defense that he’s had in place for years."

Some conservatives are wishing that Romney would give the White House a bit less ammunition and do a mea culpa on RomneyCare.

Rep. Allen West (R-Fla.), who had previously slammed the candidate for not calling the mandate a tax, said yesterday that the presidential candidate “needs to talk about the fact that what he tried to do in the state of Massachusetts was him seeing what could be best for his state, but maybe it didn’t work out as well.”

“And he should feel very bad that the president thought that he could take that as a model and try to implement that for the entire United States of America,” West added.

“The president is going to continue to try to say that this was the paradigm that I used to implement the Patient Protection and Affordable Care Act. And I think that the governor needs to come back and reassess, really, what was his decision-making criteria for implementing his healthcare in Massachusetts.”

Asked on MSNBC Tuesday about Romney's tax vs. penalty juggling, Rep. Mick Mulvaney (R-S.C.) stressed that he doesn't agree with Romney on mandates and needled at his weak spot.

"I happen to think it was a tax. I don't really have a comment on Massachusetts healthcare because I'm not going to defend it," Mulvaney said. "I live in South Carolina. I don't get a chance to vote on it. I do get a chance to vote in the federal healthcare program and I will be voting to repeal it again."

The Wall Street Journal blasted Romney's campaign in an editorial today, saying that the candidate is managing to turn "the only possible silver lining" in Roberts' ruling -- the "tax" language -- "into a second political defeat."

Still other Romney supporters say "enough already" on the mandate semantics and want the focus back on the candidate's economic goals for the country.

"Done - @MittRomney believes Obama Care is a tax," Donald Trump tweeted this afternoon. "Enough with the pundit hysteria."

"I'm on the same page with the campaign," Republican National Committee Chairman Reince Priebus said on CNN Tuesday. "The Supreme Court has spoken and they've said that it's a tax. We want to repeal the ObamaCare tax. We want to save middle class families from European healthcare. And that's what we're going to do as a party and that's what Mitt Romney will do on day one."

Romney has vowed to slam executive orders against ObamaCare his first day in office, but it will take a GOP House and Senate to repeal the law.

And the labeling is everything here: If it's a tax, reconciliation can be applied to repeal the mandate with a simple majority. If it's a penalty, repeal needs 60 votes in the Senate to break a filibuster. Hence, Democrats are pushing the "penalty" wording with all their might.

The law in and of itself has proven to a make-or-break issue at the polls, with anger stemming from town hall meetings about the healthcare overhaul fueling the Tea Party discontent that led to the 2010 midterm rout.

Gallup polling released today shows that 46 percent believe ObamaCare will hurt the national economy while just 37 percent believe it will help. That includes 20 percent of Democrats and 47 percent of independents who think the healthcare law is economically damaging.

Tomorrow's jobs numbers will likely flip the campaign focus back where Romney's team wants it: the economy. But "penalty" and "tax" will linger in the air long past November and promise to be a focal point in the presidential debates -- key to the prospects of an ObamaCare repeal and to candidates' prospects at the ballot box.