Is Romneycare Constitutional?
Some time ago, I wrote a post entitled What is Wrong with the Individual Mandate? In it, I tried to answer a rhetorical question posed by a Romney partisan who goes under the moniker ParisParamus, who had written:
Again, why is a mandate like Romneycare less conservative than raising everyone's state income taxes to pay for the free riders? Or, why isn't Romneycare fundamentally different than having raised everyone's state income taxes and then offering a credit if you get private health insurance for not being less of a potential burden on the state? WHY?
In response, on that occasion, I wrote the following -- which I believe deserves to be read and read again:
There is a simple answer to the question posed by ParisParamus. Government exists first and foremost for the sake of our protection. Without it, our lives and our property would not effectively be our own. Government exists also to promote our well-being. For its support, however, taxation is necessary, and we have tacitly agreed that, to be legitimate, these taxes must be passed by our elected representatives. By our own consent, we give up a certain proportion of our earnings for these purposes.
The money left in our possession, however, is our own -- to do with as we please. It is in this that our liberty largely lies. Romneycare and Obamacare, with the individual mandate, changes radically our relationship vis-a-vis the government. The former presupposes that state governments have the right to tell us how we are to spend our own money, and the latter presupposes that the federal government has that right as well. Both measures are tyrannical. They blur the distinction between public and private and extend the authority of the public over the disposition of that which is primordially private. Once this principle is accepted as legitimate, there is no limit to the authority of the government over us, and mandates of this sort will multiply -- as do-gooders interested in improving our lives by directing them encroach further and further into the one sphere in which we have been left free hitherto.
Managerial progressives see only the end -- preventing free-riders from riding for free. And they ignore the collateral damage done by way of the means selected. Mitt Romney and Newt Gingrich have no understanding of first principles. For both of these social engineers, citizens are subjects to be worked-over by the government for their own good. Both men are inclined to treat us as children subject to the authority of a paternalistic state under the direction of a benevolent and omniscient managerial class.
There is, however, this difference between Romney and Gingrich. The latter may or may not fully grasp why the Tea Party rose up against the individual mandate, but he recognizes that they did so, and he knows what is good for him -- so he has now backed away from the fierce advocacy of this despotic measure that once characterized his posture. The former is more stubborn. Politically, he is tone deaf. He seems constitutionally incapable of grasping the argument, he insists that the individual mandate is consistent with conservative principle, and he will not back off.
Raising taxes to reward free riders is, of course, objectionable. We should oppose it on principle. But it does not in and of itself narrow in any significant fashion the sphere of our liberty. It is a question of the proper use of the public purse. The individual mandate sets a new precedent. It extends government control to the private purse.
In the comments, I made it clear that I thought this argument – which applies with equal force to Romneycare and its offspring Obamacare – a much more serious objection to the latter than the argument that the latter is inconsistent with the commerce clause of the Constitution (which, I believe, it is). My point was that, in judging these matters, we need to resort to first principles.
In the course of the exchanges that then took place, I suggested that Romneycare was unconstitutional under the Massachusetts Constitution. On this matter, James of England, who worked in Romney’s campaign in 2008 and supports him no less fiercely today, challenged me to “quote any informed source for, or otherwise support the claim that there is uncertainty regarding the constitutionality of MassCare under the state constitution.” In the circumstances, I was unable to do so – largely because I did not have the time to do the necessary research, and, in response, James of England argued that the individual mandate fell neatly within the “police power” left to the states as that was understood at the time of the promulgation of the Constitution of Massachusetts in 1780, and he then insisted that I “stop raising the lack of clarity as though you have some support for the claim.” In response, I wrote, “You can ask, but I will not comply -- because I know a thing or two about eighteenth-century American political thought, and I doubt very much that the Constitution drafted by John Adams would sanction the individual mandate.” This earned me the following rebuke:
Could I ask you to raise the topic the next time you talk to someone you trust on the subject? To cast cutting aspersions under the guise of authority while intentionally remaining ignorant of their truth seems against your general manner.
The police power is not defined narrowly; this is almost the definition of "police power". Rather, it grants power generally and then prohibits things thought of, much of which were not thought of by Adams, but by much later amenders. Things unconsidered are therefore generally permitted (although future generations can ban them).
And to this, I in turned responded, “Sorry, James, this will not do. Technically, you may be correct. But I know enough about the thinking of people in eighteenth-century America (on which I penned a sizable tome) to be confident that it would have been simply unthinkable to propose requiring all of the citizens of Massachusetts or any other state to spend a chunk of their own money at the direction of the government.”
I mention all of this because James brought this issue up again last night, writing in a comment on Ben Domenech’s post:
Prof. Rahe does not consider federalism to be a "substantive", or, elsewhere, "serious" difference between Obamacare and Romneycare.
More importantly, Rahe attacks the constitutionality of Romneycare, while admitting that he has no basis for this other than a sense that John Adams would have opposed mandates (despite Adams using a mandate in the Massachusetts constitution (Article III)), and occasionally uses "enumerated powers" to describe state government powers.
Leave aside the fact that, in these paragraphs, he misstates my position (as is, on occasion, his wont). The substantive claim he makes is more important and deserves examination, and I want to address it in such a way as to show that the Constitution of Massachusetts framed by John Adams and ratified by the people of that state in their town meetings in 1780 supports my position, not that of James, and that in his desperate defense of Mitt Romney James is claiming an expertise that he does not possess.
Here is the first paragraph of the preamble to that Constitution:
The end of the institution, maintenance, and administration of government is to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it with the power of enjoying, in safety and tranquillity, their natural rights and the blessings of life; and whenever these great objects are not obtained the people have a right to alter the government, and to take measures necessary for their safety, prosperity, and happiness.
It needs to be read in conjunction with the first article of the Massachusetts Declaration of Rights (which follows immediately upon the preamble):
All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.
There are two things worth noticing – the emphasis on “natural rights and the blessings of life” in the first paragraph of the preamble and the list of “certain natural, essential, and unalienable rights” in the first article of the Declaration of Rights – among which can be found the right “of acquiring, possessing, and protecting property.”
I would submit that these two passages dovetail neatly with the argument I made about the ends of government in my earlier post, quoted at length above; and I think that you can easily see that Romneycare – which presupposes that the government of Massachusetts can dictate to its citizens how they are to spend their own money – is in breach of the Massachusetts Declaration of Rights. How, I would ask, can the property left to us after we have paid our taxes be in any respect our own if the state has the right to tell us how to spend it? And if the state can do this in one instance, what is there to prevent it from doing so in other instances?
James thinks that he has a ready response. He points to the third article of the Massachusetts Declaration of Rights, which reads as follows:
As the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion, and morality, and as these cannot be generally diffused through a community but by the institution of the public worship of God and of the public instructions in piety, religion, and morality: Therefore, To promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies-politic or religious societies to make suitable provision, at their own expense, for the institution of the public worship of God and for the support and maintenance of public Protestant teachers of piety, religion, and morality in all cases where such provision shall not be made voluntarily.
That a mandate is involved is clear. But it is not an individual mandate, as James implies. It is a mandate directed to “towns, parishes, precincts, and other bodies politic or religious societies,” which is to say, it is comparable to the obligations that states impose on local governments today, and it specifies one way in which those local governments in Massachusetts are to spend the revenues they raise by taxation.
I would submit that the distinction I drew and defended in my earlier post is a matter of the greatest importance. Our liberty depends on forms and formalities. The distinction between public revenues derivative from the taxes we pay with an eye to furnishing ourselves “with the power of enjoying, in safety and tranquillity, [our] natural rights and the blessings of life,” on the one hand, and the property we have a natural right to acquire, possess, and protect, on the other, is a sacred one.
Progressives reject forms and formalities. To achieve their ends, they are prepared to run roughshod over them – and over us. John Adams and the people of Massachusetts in 1780 understood what Mitt Romney, ParisParamus, and James of England have forgotten. If we are to win the battle in which we are now engaged, we must have recourse to the first principles that the Progressives so readily discard, and we must find a standard-bearer capable of eloquently making the argument. Only then can there be a new birth of freedom. Otherwise, our destiny will be to surrender to liberal democracy’s inexorable soft despotic drift.
It is a shame that there is no one in his entourage ready and able to explain to Mitt Romney the profound damage that he did when he ushered Romneycare into existence in Massachusetts. There is nothing more impressive than when a proud man stands up to confess that, in the past, he made a terrible mistake.
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Comments:
Sep '10
Re: Is Romneycare Constitutional?
Paul A. Rahe
Progressives reject forms and formalities. To achieve their ends, they are prepared to run roughshod over them – and over us. ...It is a shame that there is no one in his entourage ready and able to explain to Mitt Romney the profound damage that he did when he ushered Romneycare into existence in Massachusetts.
In the case of former governors and state legislators running for "federal" offices, it seems the Americans could avoid engaging candidates' obstinacy in defense of their own handiwork in their respective states, by insisting on the federal principle in general and the enumerated powers in particular. Every other aspect of good government is important, but what seems to be most urgent is to turn that $4-trillion colossus in Washington into a federal government again. As matters stand, the Americans could win the argument for limited government in fifty capitals, and yet still that imperial, profligate city would wreck them. They will have to work in each state and each city to recover limited government, but it seems they won't have much with which to work, either institutionally or economically, unless they put the "federal" government back within bounds.
Nov '11
Re: Is Romneycare Constitutional?
The Founding Fathers were perfect either. I'm not nearly as smart as you guys, but isn't John Adams the President who signed the Alien and Sedition Acts that made it a crime to publish "'false, scandalous, and malicious writing' against the government or certain officials." Wasn't that the McCain-Feingold on steroids of its day? And we're suppose to trust John Adams as always supporting individual freedom?
I agree with all the Anti-Romneycare stuff, of course, but Romney seems to be a honest man at least. I don't see a read-my-lips moment. Honesty is about the best you can ask for sometimes in the dirty world of politics.
May '11
Re: Is Romneycare Constitutional?
Professor Rahe's vision of how the founders meant the Constitution to operate is absolutely correct, was rejected by the courts 80 years ago, has no meaningful support in the legal community or the electorate. It is also a losing argument for the 2012 election. That the Constitution was formed as a check on government power is a happy coincidence, but the argument against over-reaching government power stands nicely on its own. People's lives are better if the government leaves them alone, and worse if the government orders them about. If we fail to convince people of that point on its own merits, then appeals to the Constitution will have no effect.
The leftist argument is that people will be better off if they have the security of a government guarantee that their needs will be met. The truthful response, and (I believe) the winning response, to that argument is that a people who give up liberty for security will have neither. Ask Greece. The Constitution is not scripture. The founders got some things wrong. But on this they were right. It is because they were right, not because they were infallible, that we should heed them.
Apr '11
Re: Is Romneycare Constitutional?
Douglas Wingate
Paul A. Rahe
Progressives reject forms and formalities. To achieve their ends, they are prepared to run roughshod over them – and over us. ...It is a shame that there is no one in his entourage ready and able to explain to Mitt Romney the profound damage that he did when he ushered Romneycare into existence in Massachusetts.
Ironically, the primary progressive decision to have come from the Massachusetts constitution in recent years, Goodridge v. Department of Health used precisely the clause that prof. Rahe does, with precisely the number of supporting precedents, although they at least acknowledged that the decision was a departure.
Finding support for one's policy preferences in the constitution where no court has previously offered a glimmer of hope is something we conservatives should not engage in without quite a lot of prior research; contrarian views may be correct, but disagreeing with the overwhelming consensus of conservative jurists, and every court to look at the issue, is something that probably requires more than a hunch.
Apr '11
Re: Is Romneycare Constitutional?
Stuart Creque
James Of England
OK. Do you mean that it's a Lingle v. Chevron U.S.A.per se taking, or a Penn Central Transp. Co. v. NYC taking?
How about aLucas v. South Carolina Coastal Commissiontaking?
Requiring a citizen to spend a sum on a product or service specified by the dictates of the State entirely deprives the citizen of the beneficial use of that property (money). ·
Lucas is one of two kinds of regulatory taking described in Lingle. For it to apply to one's financial holdings, substantially all of the money must be taken. Romneycare does not take substantially all of anyone's money. If you can't afford health insurance, you don't need to buy it and you don't pay a fine.
Feb '12
Re: Is Romneycare Constitutional?
Stuart, what does a law degree diploma from Google University look like?
Edited on February 19, 2012 at 5:00pmAug '10
Re: Is Romneycare Constitutional?
I am still not getting the 'free rider problem' that Romneycare solves.
A person goes into a hospital, receives care, doesn't pay, the hospitals can attempt to collect via the court if they choose - and the solution is to make everyone else by a product from a third party or else pay a fine? Huh?
Can you apply this logic to housing too? People rent a house, stop paying, by the time they are evicted they owe the landlord 4 figures or more, the landlord can attempt to collect via the courts - and the solution is to make everyone by an insurance policy from a third party in the event of homlessness?
I am not seeing what the state interest is here.
Funny, the 'Taking' issue. When the Supreme Court took Suzette Kelo's house, they didn't take all of her wealth. So James, are you really arguing that as long as they leave a penny (being the lowest denomination of currency one can actually hold) the regulation can take everything else?
So when are you going to bailout the landlords?
Edited on February 19, 2012 at 5:13pmApr '11
Re: Is Romneycare Constitutional?
Instugator
Because there are interest costs with a mortgage. There is not necessarily interest income with the 130K - look at what your bank pays a savings/checking account if you don't believe me.
Romneycare isn't an income tax. It is a fee/tax assessed above a minimum level of income for the privilege of being alive.
So, please explain this free rider problem Romney care is supposed to solve?
Are you really telling us that it is a Hospital bailout, Insurance company bonus or a Taxachusetts - oops - Massachusetts government bailout? ·
If you have $130k savings for the period of a mortgage, and you put it in a checking account, you deserve the pitiful return you will receive. Ignorance is no excuse as you will be repeatedly informed of the foolishness of that decision in clear language.
It is a tax/ fee that, starting at a particular income, then scales upwards as income increases until it reaches its cap (like a payroll tax). The increases are lumpier than a pure payroll tax, and not perfectly correlated with income, but are closer to that than a flat fee.
EMTALA and other more complex issues.
Not getting diverted onto this topic.
Nov '11
Re: Is Romneycare Constitutional?
Yet Another Mandate, Or Not...
This is the real-world outcome of this discussion on every level.
Apr '11
Re: Is Romneycare Constitutional?
Instugator: I am still not getting the 'free rider problem' that Romneycare solves.
A person goes into a hospital, receives care, doesn't pay, the hospitals can attempt to collect via the court if they choose - and the solution is to make everyone else by a product from a third party or else pay a fine? Huh?.....
Funny, the 'Taking' issue. When the Supreme Court took Suzette Kelo's house, they didn't take all of her wealth. So James, are you really arguing that as long as they leave a penny (being the lowest denomination of currency one can actually hold) the regulation can take everything else?
So when are you going to bailout the landlords? ·
I'm not responding to policy evaluations of Romneycare; I'm grateful for Prof. Rahe creating this thread and I'd like to keep it focused on constitutional issues. I wouldn't advocate states passing similar laws, possibly excepting Vermont.
Kelo wasn't a regulatory taking. It was a plain ol' vanilla taking, the sort of thing the Fifth Amendment was written to regulate/ prevent the Feds doing. The government has a much easier time taking your money than your house.
Apr '11
Re: Is Romneycare Constitutional?
PracticalMary: Yet Another Mandate, Or Not...
This is the real-world outcome of this discussion on every level. · 0 minutes ago
That federal mandate, like Obamacare, seems like terrible policy. Unlike Obamacare, it doesn't seem constitutionally problematic. Constitutionally, driver's ed. is a pretty similar requirement. At a state level, ABA law school attendance as a requirement to practice law is another similar mandate involving payments to third parties. As Santorum and Thomas reminded us regarding sodomy laws, the Constitution lets us pass a lot of dumb laws, and a good thing, too. The founders were amazing (and, in my view, divinely inspired), but they would have struggled to anticipate the needs of a twenty-first century America in much detail.
I've studied divinely inspired long distance predictions, and I'm very grateful that the Constitution looks like it does, not like Revelations.
Aug '10
Re: Is Romneycare Constitutional?
James Of England
Midge:
But with mandates and fees, there is no upper limit to the hoops you must jump through to remain legal...
...[keeping] track of a bunch of bills I incurred because I didn't choose to buy a potentially endless list of products would drive me stark raving.
In terms of Romneycare, you either buy insurance or you pay a fine the same way you pay taxes.
It's not Romneycare itself that worries me, but the precedent these mandates set. One mandate integrated into your ordinary tax form seems innocuous enough.
But unlike tax breaks, which are limited by the fact that the government still wants our money, there's no upper limit to potential mandates: however many mandates have been enacted, isn't there always room for one more? Which defines infinite.
Suppose all mandates must be listed in our tax forms. Then the forms have the potential to become infinitely long. Wouldn't it be more aesthetically pleasing, therefore, to allow mandates to break free of the tax form, meaning there's no one place a taxpayer can go to make sure he has satisfied all of the mandates? Why shouldn't this happen?
Dec '10
Re: Is Romneycare Constitutional?
MJMack: Stuart, what does a law degree diploma from Google University look like? · 3 hours ago
Edited 3 hours ago
Credentialism - I like it. Tell me, MJMack, do you have a law degree, or are you like me unqualified to think or vote?
Apparently a law degree from Google U has its advantages over Boalt or Harvard Law. For example, unlike those institutions, Google U doesn't teach that the government doesn't need to worry about taxing away citizen's money because it can simply direct the citizens how they must use "their own" money to meet the government's needs.
This is the world the lawyers have made for us. I find it sad that it's the lawyers who tell us what good Conservatives they are that are at the vanguard of this Brave New World.
Dec '10
Re: Is Romneycare Constitutional?
James Of England
Stuart Creque
How about aLucas v. South Carolina Coastal Commissiontaking?
Requiring a citizen to spend a sum on a product or service specified by the dictates of the State entirely deprives the citizen of the beneficial use of that property (money). ·
Lucas is one of two kinds of regulatory taking described in Lingle. For it to apply to one's financial holdings, substantially all of the money must be taken. Romneycare does not take substantially all of anyone's money. If you can't afford health insurance, you don't need to buy it and you don't pay a fine.
Please show me where Lingle holds that a taking of some of a citizen's money is different from a taking of some of his property.
Apr '11
Re: Is Romneycare Constitutional?
Stuart Creque
Please show me where Lingle holds that a taking of some of a citizen's money is different from a taking of some of his property. · 3 minutes ago
It's not different. If some of a person's real property is partially deprived of economic beneficial use, that's not a taking either. It has to be substantially all of it; there are some horrible decisions for landlords out there; the government is certainly able to ruin you through regulations without a taking occurring.
Edit: It might help you to compare it to taxes, with the difference that if you can't afford to pay the Romneycare fine, you don't have to, removing it even further from takings territory. When the government robs you of $5 while you top up your gas tank, they don't then have to compensate you with a check for $5.
Edited on February 19, 2012 at 8:10pmApr '11
Re: Is Romneycare Constitutional?
Stuart Creque
MJMack: Stuart, what does a law degree diploma from Google University look like? · 3 hours ago
Edited 3 hours ago
Credentialism - I like it. Tell me, MJMack, do you have a law degree, or are you like me unqualified to think or vote?
Apparently a law degree from Google U has its advantages over Boalt or Harvard Law. For example, unlike those institutions, Google U doesn't teach that the government doesn't need to worry about taxing away citizen's money because it can simply direct the citizens how they must use "their own" money to meet the government's needs.
This is the world the lawyers have made for us. I find it sad that it's the lawyers who tell us what good Conservatives they are that are at the vanguard of this Brave New World. ·
For what it's worth, I think your questions have been helpful in teasing out ideas that I strongly suspect you were not alone in holding. In particular, you made explicit what I think might have been Prof. Rahe's suggestion that Romneycare was a taking (I'm not sure), which is probably the best weak argument for unconstitutionality.
Dec '10
Re: Is Romneycare Constitutional?
James Of England
It's not different. If some of a person's real property is partially deprived of economic beneficial use, that's not a taking either. It has to be substantially all of it; there are some horrible decisions for landlords out there; the government is certainly able to ruin you through regulations without a taking occurring.
Edit: It might help you to compare it to taxes, with the difference that if you can't afford to pay the Romneycare fine, you don't have to removing it even further from takings territory. When the government robs you of $5 while you top up your gas tank, they don't then have to compensate you with a check for $5.
The government is allowed to exact taxes without offsetting compensation: that is why they are taxes.
The government is not allowed to take my property for public use without offsetting compensation.
When government regulation forces me to spend a sum of my own money on a government-mandated good, it deprives me of ALL economic benefit of that ENTIRE sum.
(Nice to see Romney gave a subsidy to the people too poor to pay the fine.)
Dec '10
Re: Is Romneycare Constitutional?
James Of England
For what it's worth, I think your questions have been helpful in teasing out ideas that I strongly suspect you were not alone in holding. In particular, you made explicit what I think might have been Prof. Rahe's suggestion that Romneycare was a taking (I'm not sure), which is probably the best weak argument for unconstitutionality. · 7 minutes ago
You might also consider that RomneyCare could be found Constitutional under the Massachusetts Constitution by the Massachusetts Supreme Court -- and still be a very bad, anti-Conservative law.
Apr '11
Re: Is Romneycare Constitutional?
Stuart Creque
The government is allowed to exact taxes without offsetting compensation: that is why they aretaxes.
The government is not allowed to take my property for public use without offsetting compensation.
When government regulation forces me to spend a sum of my own money on a government-mandated good, it deprives me of ALL economic benefit of that ENTIRE sum.
OK, so what you're talking about is the denominator. Obviously, any imposition would be a regulatory taking if you defined the thing taken as being the interest harmed by the regulation. Instead, the court requires broader definitions: Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency is a good case for explaining the doctrine (the interest that turned out not to be a taking was a deprivation of use of the property for a year). The taxes distinction you draw simply isn't in the text or cases; taxes can be takings, but, practically speaking, rarely are.
Regarding the possibility that Romneycare is a bad, but constitutional law, see comments 110 and 111, above. This is also the position that I took in the earlier posts Prof. Rahe refers to in the original post.
Feb '12
Re: Is Romneycare Constitutional?
It's interesting to note the extra stridency one often one sees among autodidactic denizens of message boards when they decide to double down on their uninformed arguments, even after it becomes obvious they're out of their depth in a particular field. It's often accompanied by rants against "the elites" or "the establishment" or the suspect nature of any official bona fides. All they're really doing is trying to discredit people, unlike them, who actually know what theyre talking about to deflect away from the fact that their own ignorance has been exposed.
No, credentials aren't everything, but they typically indicate a familiarity and sustained immersion in the history, developments, controversies, and nuances in certain areas of knowledge. Which means they've considered the tough or outstanding questions longer, more deeply, and with an appreciation of the actors and context in a way someone who just typed a couple of words into his browser and given a cursory read of an article or two that popped up at the top of their search results can't have.
Edited on February 19, 2012 at 9:32pm