The Fuss over Romney's Calling a Penalty a Penalty

Let's review in simple terms what Chief Justice Roberts wrote about the Obamacare law.

1. Obamacare is not allowed under the Commerce Clause because it tries to regulate a "non-activity" and the Constitution and 200 years of Supreme Court case law says that only ACTIVITY can be regulated under the Commerce Clause -- non-activity cannot be regulated because the Constitution speaks of regulating, nor compeling, commercial activity.
Here are Chief Justice Roberts words: "The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding. There is no reason to depart from that understanding now."

2. Because the Court ruled out declaring Obamacare constitutional under the Commerce Clause, they had to find another reason to support it constitutionally. That made it very important to answer the question, "is it a tax or penalty" that must be paid by almost everyone who does not buy health insurance.
In the Majority Opinion, Chief Justice Roberts said that even though the word used in the operative part (not the beginning explanatory part that has no force of law) was "penalty", that is not determinative of whether the "payment" is really a tax or a penalty. If Roberts had said that the payment is a penalty, Obamacare would be unconstitutional . Why? Because since the Commerce Clause didn't save Obamacare, only a "tax" reading could. A penalty reading, that is, a payment for an unlawful act or refusal to act, would have made Obamacare unconstitutional.
Here are Chief Justice Roberts' words: "Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it. We do not make light of the severe burden that taxation — especially taxation motivated by a regulatory purpose — can impose. But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice. The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness."
The Dissent puts the tax question in the clearest possible terms: "We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classified as a tax an exaction described in the legislation itself as a penalty. To be sure, we have sometimes treated as a tax a statutory exaction (imposed for something other than a violation of law) which bore an agnostic label that does not entail the significant constitutional consequences of a penalty — such as “license” or “surcharge”. But we have never—never—treated as a tax an exaction which faces up to the critical difference betweena tax and a penalty, and explicitly denominates the exaction a “penalty.” Eighteen times in §5000A itself and elsewhere throughout the Act, Congress called the exaction in§5000A(b) a “penalty.”

Now, to the problem with calling the Obamacare payment a tax. It means that President Obama and his administration are caught in a vise. They insist that the payment is a penalty. IF IT IS, then Obamacare just lost its only possible constitutional support. Obamacare would have been declared unconstitutional. So, in trying to prevent being accused of imposing major new taxes on the American people, Obama has said all along that the payment is a penalty.
But, now, the President is faced with the reality that the Supreme Court has found that the payment is a tax, thus giving Obamacare justification under the Constitution. If Obama continues to argue that the payment is a penalty, he is simply saying that Obamacare is unconstitutional.
That is the importance of Mitt Romney's statement that he agrees with President Obama, i.e., the payment is a "penalty." What Governor Romney is saying is that Obamacare is unconstitutional. He is waving a red flag at the President, saying, I dare you to call your payment a tax and so admit that you imposed a huge tax on Americans, hoping it would save your Obamacare from being held unconstitutional.
I do not, cannot, understand the mock shock about Romney's statement. The TV pundits, Democrats, wannabe constitutional lawyers, and even some Republicans, are simply showing their inability to follow reasoning to its logical conclusion. Or they are being deceitful and really want Obamacare to continue.
Mr. Romney said in Massachusetts that the payment was a penalty. He could do that because the MassachusettsCare was not subject to being considered under the Constitution. He was right then. He is right now.
For goodness sake, GOP, get your heads screwed on right and agree with him. Force President Obama to defend a tax that is really a penalty. Make him say, "Yes, it's a tax"...bring down the anger of America on this new large tax burden.
And, force the President to admit that his legislation was originally drafted in a way that would make it unconstitutional...that it is unconstitutional... and ought to be repealed by Congress. Because that is the alternative to Obama's being forced to agree that Obamacare is a huge new tax.
It is a pure "gotcha". The President is damned if he does and damned if he doesn't.