The Federalism Dodge - The American Spectator | USA News and Politics
The Federalism Dodge

When he stood up in Ann Arbor last week, Mitt Romney had a problem. As a Republican presidential candidate, he supports repealing the federal law signed by President Obama that forces people to buy government-approved health insurance, expands Medicaid, and offers subsidies to some individuals who purchase insurance through government-run exchanges. As the governor of Massachusetts, Romney signed a state law that does all of the above.

“A lot of pundits around the nation are saying that I should just stand up and say this whole thing was a mistake, that it was just a boneheaded idea, that I should just admit it was a mistake and walk away from it,” Romney said. “There’s only one problem with that. It wouldn’t be honest.” Why? “I, in fact, did what I believed was right for the people of my state.”

In a very business-like PowerPoint presentation, the open-collared Romney then proceeded to demonstrate that he still believes his Massachusetts health care law was right for the people of his state. So why does he want to repeal a federal law based on the same principles and that uses the same basic architecture?

Federalism, in a word. “Health care in Massachusetts may be different than in Montana or Mississippi,” Romney said. “I’m convinced, however, that the Obama administration fundamentally doesn’t believe in that.”

The main difference between Obamacare and Romneycare, then, is the level of government that implemented it. “Our plan was a state solution to a state problem,” Romney added. “His is a power grab by the federal government.”

Constitutionally, state governments retain powers not delegated to the federal government. But even if this technical-sounding yet important legal distinction could hold the public’s imagination in an election-year fight over health care, the federalism argument will not be sufficient for Romney.

Romney’s Massachusetts health care plan was designed in part by experts who supported an individual mandate at the federal level. (The state mandate, by the way, was a central component of Romney’s original Massachusetts proposal. Although he initially preferred a bond for people who chose to go without insurance, the mandate was neither incidental to his health care plan nor entirely a creation of the Democratic legislature.)

One was MIT economist Jonathan Gruber, who went on to help devise the federal law signed by Obama. He subsequently said Romney’s approach “gave birth” to Obama’s. “I’m a Dem through and through,” Gruber told Newsweek, “but Romney really knocked my socks off.”

Of course, Romney also drew from more conservative sources in coming up with health care reform ideas. In his aptly titled new book No Apologies, he writes, “The Heritage Foundation helped us construct an exchange that would make individual premium payments tax-advantaged, lowering costs even further.” But Heritage’s Stuart Butler, who played a key role in developing the exchanges concept, also supported a version of the individual mandate at the federal level. In his 1993 lecture “Why Conservatives Need A National Health Plan,” Butler argued, “The second element in our proposal is a requirement on Americans to obtain at least a basic package of health care insurance for themselves and their dependents.”

“[T]he insurance requirement is a protection for the rest of us against those who would exploit our good nature, forcing us to carry the risk that they should be responsible for as citizens in a society,” Butler continued. “So our mandate is not designed to micromanage people’s lives.” But it was a mandate to purchase health insurance. Butler’s ideas influenced a 1993 bill introduced by Sen. John Chafee (R-R.I.), who was authorized by then Senate Minority Leader Bob Dole to come up with an official Republican response to the Clinton health care plan. The Chafee counterproposal contained a federal individual mandate.

Romney inadvertently highlights the fact that Republicans — and even some conservatives — have in the past supported a federal individual mandate, the main issue in constitutional challenges to the national health care law. Romney even dropped hints that he might have once been such a Republican. During his 1994 Senate race against Ted Kennedy, Romney said he would vote for the Chafee bill, albeit reluctantly. (Kennedy would later support Romneycare and be present at the signing ceremony.) More recently, Romney has repeatedly defended the concept of an individual mandate against national critics.

“Some of my libertarian friends balk at what looks like an individual mandate,” Romney wrote in an April 2006 Wall Street Journal op-ed. “But remember, someone has to pay for the health care that must, by law, be provided: Either the individual pays or the taxpayers pay. A free ride on government is not libertarian.” In a February 2007 speech, Romney crowed, “If Massachusetts succeeds in implementing it [the Romney health plan], then that will be a model for the nation.” And in a January 2008 Republican presidential debate, he argued, “[I]f somebody can afford insurance and decides not to buy it, and then they get sick, they ought to pay their own way, as opposed to expect the government to pay their way. And that’s an American principle.”

In each of the above examples, Romney tiptoes up to the ledge on the federal mandate but declines to take the plunge. Other Republicans, however, were unambiguous in their support for the individual mandate. This includes former House Speaker Newt Gingrich, who apparently still favors some form of mandate the federal level to this very day. In fact, when Romney signed the Massachusetts mandate into law, the AFL-CIO’s John Sweeney — then an opponent of individual mandates — complained the governor was taking “a page out of the Newt Gingrich playbook.”

Team Obama plans to use this history to drown out the federalism argument and blur differences with Romney’s current federal health care proposals. “We wholly endorse flexibility and we obviously feel that Massachusetts took a smart approach towards health care reform,” said White House press secretary Jay Carney. “Its provenance was so mainstream, there are great similarities between Massachusetts’ law, the Affordable Care Act and legislation proposed by then Rhode Island Republican [Senator] John Chafee in 1993.”

Carney also touted the federalism and flexibility allowed by the waivers that can be granted to states under current federal law. And don’t be surprised if they start pointing out that the federal government pays 20 percent of the Massachusetts program’s costs through Medicaid. Romney will not be able to counterpunch by pointing to the fiscal costs, long medical wait times, and emergency room crowding likely to take place under the Obama policy, because the best real-world examples of this come from the Massachusetts plan he continues to defend.

In addition to undermining the arguments for repeal, Romney could also derail the Republicans’ plans for Medicare reform. House Budget Committee Chairman Paul Ryan has proposed transforming Medicare into a premium support system. Romney in Ann Arbor on his Massachusetts health law: “We gave people a premium support program where they could buy their own private insurance of their choice, and for the poor, we helped them with support.” Washington Post blogger Ezra Klein has already argued that Ryan’s “plan basically turns Medicare into the Affordable Care Act” signed by Obama.

To recap: what Mitt Romney did in Massachusetts may not raise the same constitutional questions as what Barack Obama did nationally. But many of the people who helped devise the Massachusetts law had similar designs nationally. Romney is making arguments about Massachusetts that are nearly identical to what Obama has argued nationally, while disqualifying himself from arguing for Obamacare’s repeal based on Masscare’s failures. He is instead reminding people of the individual mandate’s Republican pedigree at a time when arguments against its constitutionality are gaining momentum. And he wants to take credit for running a laboratory of democracy while denying his experiments have any national consequences.

Maybe federalism can trump all that. More likely, conservatives will agree with the Wall Street Journal: “If [Romney] does not change his message, he might as well try to knock off Joe Biden and get on the Obama ticket.” And swing voters may channel Jon Gruber. “[Romney’s] the one person who deserves the most credit for the national plan we ended up with,” Gruber told Newsweek. “And yet he’s railing against it. Does the guy believe in anything?”

Romney’s “no apologies” health care speech may have reinforced the very reaction it was intended to avoid.

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