On the main site today, Robert Kirchhoefer does make one important distinction between the health care bill signed into law by President Barack Obama and the Massachusetts bill signed into law by then Gov. Mitt Romney: conservative supporters of the individual mandate, whether at the state or federal level, were trying to prevent something further to the left from passing; Obamacare supporters were trying to pass something further to the left and ended up with the individual mandate-driven system as a compromise.
Romneycare was intended as more or less than final step, while Obamacare is the first one. That, and the fact that state governments have police powers the Constitution doesn’t give to the federal government, are the two most significant differences. But conservative defenses of Romneycare still unwittingly make Obamacare harder to overturn or repeal.
First, such defenses tend to accept (at least for the sake of argument) the idea that the individual mandate was necessary to address the free rider problem. There are good reasons to think the individual mandate isn’t necessary for solving the free rider problem. More importantly, Obamacare’s mandate is as much about making the ban on preexisting conditions workable by pushing healthy workers into the health insurance market as it is about free riders. These are central policy and constitutional justifications for Obamacare.
Second, these defenses tend to emphasize (and sometimes exaggerate) the conservative pedigree of Obamacare. This makes it harder to work for its repeal politically. And with a Supreme Court that is reluctant to overturn domestic legislation of this scale, it makes the Obama administration’s interpretation of the commerce clause seem less outside the mainstream.