Why RomneyCare is Constitutional While Obamacare is Not

Recently, Judge Roger Vinson of the U.S. District Court for the Northern District of Florida, ruled that ObamaCare was unconstitutional in its entirety.  The entire decision is worth reading. Judge Vinson’s ruling goes much further than U.S. District Judge Henry E. Hudson of the U.S. District Court for The Eastern District of Virginia since he only invalidated a segment of ObamaCare.  I also recommend reading his decision as well.

As it stands now, two federal district court judges have upheld the law while two federal district court judges have held it unconstitutional either in part or in its entirety. The split between the federal district judges means that the United States Supreme Court will eventually have to rule on the Constitutionality of ObamaCare.

Regardless whether or not the Supreme Court will uphold or reject the constitutionality of ObamaCare, it will have no impact on the constitutionality of RomneyCare. There have been many legal challenges to have RomneyCare invalidated under Massachusetts State Consitution, known as the Massachusetts Declaration of Rights; but none of them have been successful. The most well known case, Fountas v. Dormitzer, upheld the Constitutionality RomneyCare despite having every legal challenge in the book thrown at it.

Although the case was ultimately dismissed on procedural grounds, the judge clearly explained that Mitt Romney’s health care did not violate Federal or State constitutional principle because a state can regulate health care on the basis of a state’s police power. The judge writing in Fountas v. Dormitzer explains the legal concept of police power:

“Police power” is an old fashioned term for the Commonwealth’s lawmaking authority, as bounded by the liberty and equality guarantees of the Massachusetts Constitution and its express delegation of power from the people to the government.

In other words, the federal government and the states derive their power to pass laws from two completely different sources. The federal government is limited in its ability to pass laws so long as its within its enumerated powers of the U.S. Constitution. What this means is that the federal government may exercise only those powers granted by the federal constitution. In contrast, states have a general “police power,” in which they can pass laws so long as its rationally related to promoting the health, safety, and  morals of the community. The significance of this legal doctrine is that states have the ability exercise plenary power and are presumed to have all powers not expressly prohibited to them by the constitution.

The judge explains that Massachusetts was well within its police power to pass RomneyCare because “as a rational basis of fact can be reasonably conceived to sustain it, the act is a proper exercise of police power” and as a result, a “proper exercise of the police power violates no provision of the Massachusetts Declaration of Rights…” The entire holding of that case can be read here.

As a result, RomneyCare will be upheld as being Constitutional under Massachusetts State Constitution or the United States Constitution, regardless of how the U.S. Supreme Court decides on ObamaCare. As a matter of constitutional law, a state can impose a mandate whereas the Federal government cannot because due to the fact that state governments and the federal government derive their power to pass laws from two completely different sources. This means that there is a huge distinction between a mandate enacted by the federal government or a mandate enacted by the state legislature. As a result, RomneyCare is constitutionally valid under the United States Constitution and the Massachusetts state Constitution.

Mitt Romney has always defended his health care plan explaining that his plan was not meant to be enacted on the federal level and that states are free to structure their own health care plan. Thanks to the the recent ruling by Judge Roger Vinson, the case reaffirms Mitt’s argument that state mandates are constitutional and it helps Mitt Romney in a very big way:

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’m not going to apologize for the rights of states to craft plans on a bipartisan basis to help their people,” Romney said on Good Morning America this morning, and it’s no longer a bad answer.

~ Jared A.

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15 Responses to Why RomneyCare is Constitutional While Obamacare is Not

  1. Bessie Smith says:

    This article was difficult to read: “As a matter of
    constitutional law, a state can impose a mandate whereas the
    Federal government cannot because due to the fact that state
    governments and the federal government derive their power to pass
    laws from two completely different sources.” More importantly,
    however, the author does layout the best argument Romney has when
    it comes to battling critics of his healthcare plan. States do have
    more power than the federal government when it comes to regulation
    (in most cases). If I were running Mike Huckabee’s campaign (or the
    campaign of any of Romney’s Republican primary opponents), I would
    have him combat this argument by saying something along the lines
    of: “Just because you have the power to pass a government-mandated
    healthcare system, does not mean it is in your state’s best
    interest to do so. Congress has the power to declare war on Canada.
    It is obviously not in the United States best interest to invade
    our northern neighbors tomorrow.” At some point Romney is going to
    have to explain why passing government-mandated healthcare was in
    the state of Massachusetts’ best interest (as opposed to a more
    conservative solution. No one forced Romney to sign this into law).
    This is where things will start to get a little dicy. I hope he
    understands this will be more than just a debate on states rights.
    I expect he does understand, and I am looking forward to how he
    handles this issue in the debates.

  2. Lori says:

    Dear Bessie, you state “at some point” as if Romney has yet to explain it. He promoted it throughout the process within the state at the time. He made the case to the legislatures, to the panel of experts who helped develop it, and to the people of the state and they also made their case to Romney. He often explained about free-riders, and adverse selective risk, and the rise in premiums to sick people to cover their pre-existing conditions that would result without the individual mandate, to maintain strong insurance industry so that the pre-existing exclusions could be eliminated and not put insurance companies into bankruptcy. These are only a few of the problems that the mandate addressed.

    He justified his actions very well to his constituency to whom he owed a thoughtful decision. The plan was bi-partisan, took two years to develop, and passed with 99% of the legislatures vote. He worked with his state and they were not overlooked but every bit part of the process.

    Romney owed Massachusetts the explanation because this was for them and they were satisfied. He does not have to explain something to you who know darn well he would implement no such plan as president. It is irrelevant. You see, Romney does not force things down folks throats on a one-sided, my way or the highway “the-election-is-over-John” approach. Romney includes all in any policy development so that the very best policy is formed.

    Its irrelevant so I would think a total waste of your time but if you still desire to know and it would appear you think you are owed an explanation why it was in the state’s best interest I suggest you revisit the history of it, the news of 6-8 years ago. This was no state secret, but Romney and others openly made their case to the citizens of Massachusetts, those directly affected.

    What Romney ought to address would be what he would like to do as president, things that do affect you. And he should not waste time talking about things without federal application but instead things that matter the most to Americans of all states.

  3. Scott says:

    Liberals think emotionally. This is partially why they make very poor judges. To the intellectually honest, this is an open and shut case of federalism. Unfortunately it is very difficult for emotionally led individuals to be intellectually honest.

  4. Aaron Gundy says:

    Great input, Lori!

  5. Bessie Smith says:

    Dear Lori,

    I am envious of your ability to break up your paragraph’s. (I promise I did the same thing. I have no idea why my post turned into a blob of word soup.)

    I am less envious of your defensive reflex, or your ability to articulate an argument. I never suggested Romney did not do an adequate job selling his healthcare plan to the residents of MA, the state legislature, or a panel of experts (this simple fact, unfortunately, renders your entire rant void).

    What I did suggest was: “At some point Romney is going to have to explain why passing government-mandated healthcare was in the state of Massachusetts’ best interest” - to Republican primary voters. Given your ability to write in a somewhat-coherent manner (unlike the author of this article); I am forced to assume you are also able to read and watch the news. If you think his healthcare plan is not the single biggest obstacle to him securing the nomination; than suggesting his record as Governor is “irrelevant” would not be the most ridiculous assumption you have made today. (You really think debating a Presidential candidate’s record is “irrelevant” and a “total waste of time”? What an unbearable burden it will be for Mitt to have to explain something he did 6-8 years ago. No candidate in history has ever had to go through such scrutiny. Great input, Lori!)

    I can not ascertain how you read my comment as a criticism of Romney, or his government-mandated health care plan. I simply stated this argument will not just be a debate on states rights, and presented an obvious example of how his opponents will switch the debate from a state issue (where Romney is on solid ground) to the issue of government-mandated insurance (where Romney will be on shaky ground in a Republican primary - an obvious fact). Jennifer Rubin pointed out Romney’s dilemma perfectly: http://voices.washingtonpost.com/right-turn/2011/02/mitt_romney_is_struggling_to.html

    A quick note to the author: I did find it a little curious how willing you were to promote Judge Vinson’s decision; considering he mentions Romneycare in his ruling - insinuating MA residents are “worse off” - and basically ascribing to the notion of Romneycare being the blueprint for ObamaCare. It seems odd to advance the ruling so unabashedly on a pro-Romney site.


  6. Jared A. says:

    @Bessie Smith

    If you go back and read the foot note that Judge Vinson wrote, you’ll see that neither did the judge explicitly or impliedly state that MA residents were worse off. The Judge was quoting President Obama HIMSELF commenting on the MA health care and provided citations for that quote.

    Here’s the entire foot note so you can read it yourself:

    On this point, it should be emphasized that while the individual mandate
    was clearly “necessary and essential” to the Act as drafted, it is not “necessary
    and essential” to health care reform in general. It is undisputed that there are
    various other (Constitutional) ways to accomplish what Congress wanted to do.
    Indeed, I note that in 2008, then-Senator Obama supported a health care reform
    proposal that did not include an individual mandate because he was at that time
    strongly opposed to the idea, stating that “if a mandate was the solution, we can
    try that to solve homelessness by mandating everybody to buy a house.” See
    Interview on CNN’s American Morning, Feb. 5, 2008, transcript available at:
    http://transcripts.cnn.com/TRANSCRIPTS/0802/05/ltm.02.html. In fact, he pointed
    to the similar individual mandate in Massachusetts — which was imposed under the
    state’s police power, a power the federal government does not have — and opined
    that the mandate there left some residents “worse off” than they had been before.
    See Christopher Lee, Simple Question Defines Complex Health Debate, Washington
    Post, Feb. 24, 2008, at A10 (quoting Senator Obama as saying: “In some cases,
    there are people [in Massachusetts] who are paying fines and still can’t afford
    [health insurance], so now they’re worse off than they were . . . They don’t have
    health insurance, and they’re paying a fine . . .”).

    There’s nothing in the judge’s ruling that explicitly or impliedly states a endorsement or disapproval of RomneyCare.

    This judge is smart. He knows his job is to rule on the law. A judge cannot, in writing his legal decision, explicitly or implicitly, state an endorsement of a policy. That would be a violation of Code of Judicial Conduct.

  7. Jared A. says:

    @Jared A.

    Arrgg!! The judge’s foot note got all messed up. Hopefully you can understand my point though. The judge said nothing in support or in disapproval of RomneyCare. He was simply quoting from a CNN article.

  8. Jared A. says:

    I wrote a blog to explain that if any thing, the footnote actually strengthens Mitt Romney’s case: http://conservativesamizdat.blogspot.com/2011/02/obama-was-against-romneycare-before-he.html

  9. ChuckP says:

    Lost in the argument about why Romney would support a
    mandate in Massachusetts is the support the requirement had from
    both sides of the political spectrum. As was shown in previous
    posts, the mandate was needed to ensure the nobody freeloaded off
    the taxpayers unless they met the criteria for support due to low
    income levels. This legislation was supported by Democrats and
    Republicans in the state, and it is important to remember that
    Romney brought in the Heritage Foundation (not exactly a bastion of
    liberal thought) while the bill was being crafted. The final bill
    had the support of the foundation as I recall. On the state level
    Romney did what the majority in his state thought was best. It is
    also noteworthy that some bad parts of the legislation survived
    despite Romney’s vetoes. In addition, after he left office Governor
    Patrick substantially increased costs, which have created problems
    for the system. Of course, Romney gets blamed for the problems
    created by the legislature and current governor.

  10. Barbara Inman says:

    I have a problem with the use of the term “state’s police power.” The average lay person may look at that term and translate it to “police state” and then think of Nazi Germany. We live in the era in which the Constitution has been so trampled upon that it now hangs by a thread. And there is a general idea about that perhaps the states can stand firm against federal encroachment. In fact, the use of the Commerce Clause itself to deny a farmer the right to grow wheat for his own use was an abuse of the intentions of the framers of the Constitution. I for one am a purist as an advocate for the intentions of the framers of the Constitution and would prefer to hear an argument for Mitt’s RomneyCare on that basis. I did hear your argument that Mitt’s RomneyCare was based upon his desire to give to the Massachusetts’ people what they wanted. However, you did not completely spell out that point either. In general, I would agree with Bessie Smith’s point that your article was difficult to read.

  11. Rick says:

    I think Bessie makes a decent point. If the Constitution
    were amended to make it legal for the federal government to impose
    an individual mandate, would that make all conservatives more
    excited about Obamacare? Probably not. I think the individual
    mandate itself is something strongly opposed by many conservatives,
    regardless of its legality. In my opinion, both arguments are
    important for Romney to make to differentiate his plan from
    Obamacare : 1) his plan was a state-level decision enacted on a
    bipartisan basis, and 2) the individual mandate was more likely to
    be effective in MA due to the demographics and particular health
    care situation of that state. It’s not something he would advocate
    on a national basis. I also think it helps him that he acknowledges
    the plan isn’t perfect, but it was at least an attempt at
    addressing the health care situation in MA-states are free to
    learn from each other’s experiences and mend their own policies.
    Bottom line: I don’t think Romneycare has to be or should be a deal
    breaker for conservatives considering whether to throw their
    support behind him.

  12. ChuckP says:

    Because state and local governments are required to treat any uninsured person who shows up at a hospital with an emergency medical condition, the taxpayers are required to pick up the tab. That is true whether or not the person has the means to pay for the treatment. Because of this mandate, the taxpayers are required to fund the health care of people who for one reason or the other do not have health care or the willingness to pay on their own.

    This situation has created an incentive for people who could otherwise buy insurance to not do so knowing that they will be treated in any case and that the costs may well be picked up by the taxpayer. In this situation, we basically have three choices; 1) continue to fund the deadbeats, 2) stop treating anyone who doesn’t have the means of paying for treatment, or 3) mandate that all carry insurance.

    Those in favor of option 1 are telling the irresponsible to continue freeloading of the public. Those that favor option 2 are heartless beasts who would let people die in the streets in front of hospitals due to the lack of treatment. Those that favor option 3 are Nazi’s that force people to buy what they do not want to buy. As long as we continue to demagogue this issue, the problem cannot be fixed.

  13. Barbara Inman says:

    We are seeing rhetoric and demagogue, the appealing to certain mind sets and passions of the public. I think ChuckP’s options 1, 2, and 3 are good examples of it.

    But I do see at least one other option in addition to the three listed by ChuckP: A return to the Constitution and the intentions of the framers of the Constitution. If we choose to think of the Constitution in terms of some worn-out old rag, that just needs to be thrown away, then WE REALLY WON’T FIX THE PROBLEM.

    I am realistic enough to realize that we can’t extricate ourselves from the MESS that BIG GOVERNMENT has created. Ezra Taft Benson in AN ENEMY HATH DONE THIS gave examples of how to move in various stages towards solving big WELFARE and Welfare-related problems.

    My suggestion is that the public be encouraged to understand and appreciate the Constitution; and that a return to it be accomplished in various stages; and that the public be involved in and aware of these various stages.

  14. Jerry Inman says:

    I look at the current government that we have as being basically a Nazi government, which is a socialistic form of government with an elite ruling class. Tell me if I’m wrong. Do we, the people pay for their extravagant health care, their extravagant pensions, their extravagant salaries, their extravagant travel and vacations? And exactly, who do they answer to? This is like trying to audit the FED. They SPEND AT WILL with no constraints whatsoever. And, again, who do they answer to? They answer to no one. When we vote them out, we get another nest of VIPERS to take their places.

    We need to go back, study the Constitution, and MANDATE THESE CHECKS AND BALANCES. The Constitution is set up to control these bandits. Abraham Lincoln said it as succinctly as I think anyone could have said it, THERE’S JUST NOT ENOUGH TEATS TO GO AROUND (too many hogs and not enough teats). This is our first and basic flaw. And like any law case, until you return to the first flaw, you can not solve it.

    All this other talk is just rhetoric (b.s.) until we actually want to face and fix the problem.

  15. Robert M says:

    I am writing to ask for clarification on a few of the murkier points in this argument. I am a Massachusetts resident who was recently assesed an additional financial penalty two years after the “fine” or “tax” (depending on perspective) I incurred for failing to purchase a product (insurance) that I neither desired nor required. I expect another fine for last year’s taxes to roll around this time next year.

    What does it matter if it’s federal overreach or a state “police power”? Am i not still being punished for failure to purchase? How can Mr. Romney say that my rights are invalid while those who live in the other 49 states must be protected. Without a more coherent clarification, i’m afraid i will have to agree with those who suggest that Mr. Romney’s beliefs, in this case anti Obamacare, are subject to change with the times.

    A little help please, sir. These are tough economic times. I should be able to decide how to best allocate my resources