This whole penalty/tax thing may not matter a whit in the campaign. I don't know. I suppose it'll come down to this. Republicans will try to say, as they have been, that this is a tax on middle-class Americans. That's technically true, except the part that they leave out is that it will be a tax on about 3 or so million particular middle-class Americans who chose not to do a particular thing.
So the $64,000 question is, can Obama and the Democrats explain that in such a way that will get through? You know the adage: When you're explaining, you're losing. But this doesn't seem too complicated an idea to me. There will be debates. This will be discussed. Obama will make this point. Romney won't refute it, because there's no advantage to standing up there in that particular format and telling a flat-out lie. And I think most people will get it: "If you have insurance now, don't worry about this at all, it doesn't affect you; but if you don't, and you refuse to buy it, then yes, you'll be subject to this penalty or tax. But in Governor Romney's Massachusetts, where he did the exact same thing, only about 1 percent of the people pay this tax." That seems pretty simple to me.
Now, take this as a totally nonpolitical comment. I can see legally why this penalty is a tax, but from a common-sense point of view, penalties and taxes to me are different things. Taxes are levied on the basis of status. Penalties are applied on the basis of behavior.
You get a job and a paycheck, you pay taxes. Status-based. You buy property, you pay taxes. Status-based. But if you fail to do something the law requires, you pay a penalty, not a tax. If I fail to file taxes, and the IRS catches up with me, I will eventually be forced to pay, as they say in the newspapers when the describe such situations, all back taxes and penalties. They're different things. I wonder sometimes about the ramifications of this down the road.
What if the EPA fines a big polluter? That's a penalty. And what if the polluter sues, charging that under National Federation of Independent Business v. Sebelius (i.e., the health-care case), the EPA is trying to tax him, and the EPA does not having taxing authority? Or: Can a speeding ticket fine now be challenged as a tax? Those doesn't strike me as any more far-fetched than you wingers worrying about being forced to eat broccoli; indeed considerably less so. And anyway you should eat broccoli, dammit. It's good.
Actually it's no match for broccoli rabe, the greatest vegetable on God's earth. I would wholeheartedly support a law making everyone eat it, and more to the point making every restaurant serve it, with lots of garlic and some red pepper flakes, sauteed in olive oil and a little chicken or vegetable broth. Can we all agree on this one? Can't we all just get along?
Anyhow, the jobs numbers will be out tomorrow and we'll be done talking about this health-care business for a little while. Early signs are encouraging, but early signs are often wrong. Rules of thumb are as follows: Under 100,000 is disaster for Obama. Above 150,000 is disaster for Romney. Between those two...spinsanity.