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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Will the Courts Save Romney on Health Care?

Because, I suppose, every well-aired political argument eventually stimulates second thoughts, the idea that the similarity between Mitt Romney’s and Barack Obama’s health care policies could doom the former’s odds of getting to face the latter in 2012 is now arousing some significant pushback.
At Politico, Ben Smith suggests that the shift in the conservative fight against health reform to the courts, and more specifically, to a “federalist” argument against the constitutionality of last year’s legislation, may save Mitt’s bacon, since he, too, has argued that mechanisms (like an individual health insurance purchasing mandate) perfectly appropriate for state-level policymaking are illegitimate if pursued at the federal level. Here’s Ben’s conclusion:

One of Romney’s weak arguments was that the Massachusetts plan was fundamentally different, as a matter of policy, because it had been enacted on a state rather than federal level. The argument got little traction and Romney, after an effort in the Spring of 2010 to explain his record, simply fell silent.
Romney’s argument is now much stronger. Because the main objection to ObamaCare, as its critics call it, is no longer a matter of policy nuance. Now critics primarily make the case that it’s an unconstitutional expansion of specifically federal power. And on that turf, the similar structure of the plans doesn’t matter. Romney enacted his at a state level, and states have — conservatives argue — more power to regulate the insurance industry, as they do with car insurance.

I think this counter-argument is off for two reasons. First of all, the current conservative enthusiasm for a second federal district court decision invalidating some or all of “ObamaCare” does not mean the judiciary is now the sole front against this legislation. Yes, conservatives will echo the “federalist” arguments of their judicial heroes, but they won’t stop attacking ObamaCare on other grounds–cost, coercion, redistribution, alleged threats to Medicare, etc., etc.– in other venues, including Congress and state governments.
Second of all, conservative commitment to federalist principles is almost certainly being overrated on this issue as on many others over the years. If conservatives oppose a particular federal policy that is unpopular in many states, they will of course support the right of those states to go their own way. But when the shoe is on the other foot, federalism goes out the window quickly. This is most obvious on cultural issues like abortion, where conservative activists simultaneously rail at the preemption of state policymaking wrought by Roe v. Wade, and favor a federal constitutional amendment protecting the fetus regardless of what individual states want. But it’s also evident in the vast array of issues involving business regulation, where conservatives regularly support the right of states to enact less stringent environmental or labor regs, and just as regularly support (where they can get it) federal preemption of more stringent state regulations. Conservative adulation for the supremely anti-federalist decision in Bush v. Gore is the capper, in my opinion: federalism is primarily a mean to a desired end, and is disposable otherwise.
In any event, the attack on the individual mandate as a dangerous extension of federal power is inextricable from the idea that the individual mandate is itself dangerous to individual liberty. Consider this key line from Judge Roger Vinson’s ruling this week:

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.

Aside from the gratuitious and revealing shout out to the Tea Party Movement in this line, Vinson is excoriating the tyrannical nature of a mandate against “inactivity” by government, any government. And Mitt Romney has done nothing to defend himself against that conviction, which will endure among conservatives no matter what happens to the constitutional challenge to health reform.

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