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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.
Published in General
Prof. Rahe, being almost entirely ignorant of 18C Mass institutions, I wonder what “religious societies” refers to in the third article.
(I also wonder if you’re being a little personal. But I guess JoE has broad shoulders, as you do, and the debate will continue on a scholarly basis.)
I’m still not sure I see that the distinction between tax revenue – the state confiscating your property and then doing something with it – and a mandate – the state telling you what you have to do with your property – as coming down to first principles. Are you saying that there is no limit to what the state can do, as long as it first taxes, but that there is a limit to what it can make you do?
There is nothing more impressive than when a proud man stands up to confess that, in the past, he made a terrible mistake.
While I usually find myself in hearty agreement with you Dr. Rahe, there is little you have ever written or said that I agree with more than the above. The finest quality any leader can have is humility.
That is going to leave a mark.
(I also wonder if you’re being a little personal. But I guess JoE has broad shoulders, as you do, and the debate will continue on a scholarly basis.)
I’m still not sure I see that the distinction between tax revenue – the state confiscating your property and then doing something with it – and a mandate – the state telling you what you have to do with your property – as coming down to first principles. Are you saying that there is no limit to what the state can do, as long as it first taxes, but that there is a limit to what it can make you do? ·25 minutes ago
There are limits to what the political community can do in taxing, but we, acting through our representatives, have broad (but not unlimited) discretion in this particular. We have none in telling individuals how they can spend their own money.
While I usually find myself in hearty agreement with you Dr. Rahe, there is little you have ever written or said that I agree with more than the above. The finest quality any leader can have is humility. ·25 minutes ago
Yes, and for all of his faults (which are legion), Newt Gingrich at times displays that humility. If only he . . .
Prof. Rahe, you might also note that the framers of the Massachusetts Constitution felt it necessary to carve out a specific authorization for the mandate for religious institutional support. That would indicate that they did not believe that their government had the power to issue mandates, but that in this one specific instance, as the language says, “the people have the right” to authorize the Legislature to issue a mandate for this specific purpose.
Indeed, the language implies that under this Constitution, the people themselves do not reserve the right to authorize the Legislature to issue any other mandate: if they did, the article in question would be moot, as any and every mandate would be possible.
Thus, the existence of a mandate in the Massachusetts Constitution for one purpose isn’t an argument that the Constitution favors mandates for any other purpose — it’s an argument that all other mandates are prohibited because they are not expressly permitted.
Question: If we take this line of argument (which I agree with), do we not have to take a close look at compulsory education?
There is a distinction, in that most people today take advantage of the tax-funded public education system, rather than spending their own money. But that is where Obama’s mandate (though not Romney’s) is intended to take healthcare, as well.
Prof. Rahe:
Doesn’t your reasoning apply to much else? For instance, Persons A and B are identical in every way. Person A pays cash for a house, while Person B gets a mortgage and hence pays significantly less in taxes. Haven’t both been “instructed how to spend their own money”, and hasn’t Person A been punished because he didn’t comply? Is this not a mandate in every sense, including federal? Or is the mandate/no-mandate distinction really only a matter of whether the punishment takes the form of “higher net taxes” or a literal fine? If so, it seems a trivial distinction.
Re Romneycare: It’s of no consolation, I know, but my best guess is that Romney now understands Romneycare was an error, both politically and policy-wise, but he believes that to abandon it beyond his current “hey, it’s not perfect” stance would be a net-bad politically — the mother of all flip flops for a candidate already burdened with too many.
And in truth, such a noble confession probably would be laughed at by most: “There Mitt goes again, telling us what we want to hear”. Mitt’s in a pickle.
Taxes are noxious. Mandates are noxious. Neither is better. Neither is worse. Deal with it.
Paleologus, last I checked, an IMPOST is a tax or duty. As far as I am aware, the term doesn’t apply to the government ordering a private citizen to purchase a product or service on pain of punishment. It’s a synonym for “exaction,” as used on another thread.Do you have a different understanding?
Professor Rahe,
Excellent post, and your ultimate paragraph on humility in our leaders cannot be over-lauded. It is the essential element in great leaders and, among Presidents, none more so than Washington.
I must take small exception to one point, however. You lump Gingrich and Romney in the same error, “Mitt Romney and Newt Gingrich have no understanding of first principles,” and I think uncharitably so, implying that Newt only backed away for personal reasons you can have no way of directly and accurately knowing and imputing base motive. I suggest that, as a man without an unexpressed thought, Gingrich endorsed a mandate on the first principle of encouraging personal responsibility. He ultimately came to realize the conflict between a mandate and personal freedom and he backed away from the idea. In other words, he actually has manifested that humility you lauded in your ultimate paragraph.
Having identified an essential characteristic of a great leader, do you now eschew the one who demonstrates it? After all, no man can show humility unless he commits an error from which to repent.
It is, indeed, a sad, sad commentary that Mitt cannot bring himself to admit his obvious error.
The difference between Romneycare and Obamacare really is the intent. Romney — however badly he did so — was trying to include free-market principles, and intended it to go no further. (In fact, the legislature took it further than he supported — and he would help himself if he explained how more explicitly.) Obama and Pelosidesignedtheirs to go much, much further. Their goal is different.
That is not a defense of Romneycare at all. But if he is the nominee — which is still likely — it matters. ·9 minutes ago
YES. The spiraling-into-Leviathan nature of Romneycare is a bug that the novice Romney didn’t anticipate or intend. But he’s a smart guy and I suspect he’s learned (and I intend to keep telling myself this over and over until I fully believe it).
Obama, however, considers the spiraling-into-uber-Leviathan nature of Obamacare to be his greatest accomplishment.
Not exactly a great consrvative rallying cry, but it is significant.
That really pretty much sums it up. I’d vote for him over Obama. But I’d have to hold my nose in the process.
In reading once again Professor Rahe’s distinction between taxing citizens and forcing them to spend their own money at the whim of the state, which I agree is an important distinction, I wonder whether this same distinction should apply to legal persons, not just natural persons.
By its nature, the administrative state imposes thousands of mandates upon private businesses, many of which direct those entities in expending resources that are their private property. If it is unconstitutional for the state to direct private individuals in the disposition of their money, wouldn’t it also be unconstitutional to do so to any legal person? Why should businesses be treated any differently? For example, how can the Federal government be allowed to direct a private hospital to spend its own funds providing emergency medical care to an illegal alien who appears in its emergency room? Isn’t that precisely the same sort of mandate that Obamacare imposes on natural persons?
Regulation makes private businesses the agents of the state in the same way that Obamacare conscripts individuals to serve the public good by purchasing insurance. If the individual mandate is unconstitutional, isn’t rampant progressive corporatism as well?
It is, indeed, a sad, sad commentary that Mitt cannot bring himself to admit his obvious error. ·4 minutes ago
Tom — and others — I just ask you to consider the REAL possibility that Romney actually doesn’t think he committed an error with Romneycare, which I think is the most likely choice, and what that says about his political orientation. Pride is a problem, but liberalism masquerading as conservatism — if that’s the case — is much worse. Romney baffles me but my radar senses problems. In the event he becomes the nominee, I hope I can get more comfortable with the idea that he’s a) authentic in general and b) an authentic conservative.
That really pretty much sums it up. I’d vote for him over Obama. But I’d have to hold my nose in the process. ·7 minutes ago
I’m suffering such a fit of melancholy at the moment that could easily just throw in the towel and not bother voting at all. I know that’s terribly illogical, but it’s how I feel at the moment.
Indeed, the language implies that under this Constitution, the people themselves do not reserve the right to authorize the Legislature to issue any other mandate: if they did, the article in question would be moot, as any and every mandate would be possible.
Thus, the existence of a mandate in the Massachusetts Constitution for one purpose isn’t an argument that the Constitution favors mandates for any other purpose — it’s an argument that all other mandates are prohibited because they are not expressly permitted. ·2 hours ago
I had not thought of this, and I will have to give it thought. My guess is that Adams and his fellow citizens thought about religion in something like the way Jefferson thought about education.
Doesn’t your reasoning apply to much else? For instance, Persons A and B are identical in every way. Person A pays cash for a house, while Person B gets a mortgage and hence pays significantly less in taxes. Haven’t both been “instructed how to spend their own money”, and hasn’t Person A been punished because he didn’t comply? Is this not a mandate in every sense, including federal? Or is the mandate/no-mandate distinction really only a matter of whether the punishment takes the form of “higher net taxes” or a literal fine? If so, it seems a trivial distinction. ·41 minutes ago
I am no friend of the mortgage deduction. It is a piece of social engineering designed by”geniuses” to manipulate the housing market, and its real effect is to drive up prices. That having been said, there is no mandate. You do not have to buy a house. Think of it this way. Is sales tax a mandate? Is the absence of sales tax in some states on the purchase of groceries somehow a mandate?
I am inclined to think that the simplest answer is the one most likely to be true. Mitt Romney is an earnest guy. This was his signature accomplishment as Governor of Massachusetts. He was and is genuinely proud of it, and remember: he ostentatiously and repeatedly recommended it as “a model for the states” and even called it “a model for the nation.”
One of the things I find endearing about Romney is that when he lies (and he finds that he has to lie with some frequency) he looks profoundly uncomfortable and carries it off awkwardly. He has been forced to move in a conservative direction, and he is not entirely comfortable with it.
I must take small exception to one point, however. You lump Gingrich and Romney in the same error, “Mitt Romney and Newt Gingrich have no understanding of first principles,” and I think uncharitably so, implying that Newt only backed away for personal reasons you can have no way of directly and accurately knowing and imputing base motive. I suggest that, as a man without an unexpressed thought, Gingrich endorsed a mandate on the first principle of encouraging personal responsibility. He ultimately came to realize the conflict between a mandate and personal freedom and he backed away from the idea. In other words, he actually hasmanifestedthat humility you lauded in your ultimate paragraph.
Havingidentifiedan essential characteristic of a great leader, do you now eschew the one whodemonstratesit? After all, no man can show humility unless he commits an error from which to repent.
It is, indeed, a sad, sad commentary that Mitt cannot bring himself to admit his obvious error. ·30 minutes ago
You may be right that I am being too hard on Gingrich.
Taxes are necessary. They are the price that we pay so that we can keep the rest of our property. No police, no judges, no law enforcement, no national defense, no protected property. Mandates mean that our property is not ours. Think about it.
As much as I’m opposed to RomneyCare, the (Mass.) Constitutional prohibitions described here are a little too “penumbras and emanations” for me.
I am no friend of the mortgage deduction. It is a piece of social engineering designed by”geniuses” to manipulate the housing market, and its real effect is to drive up prices. That having been said, there is no mandate. You do not have to buy a house. Think of it this way. Is sales tax a mandate? Is the absence of sales tax in some states on the purchase of groceries somehow a mandate? ·27 minutes ago
Very sorry to belabor this, Prof. Rahe, but what if the fine in Obamacare (or Romneycare or whatever) were replaced by a tax break for compliers and a denial of the break for the rogues. Would it then be constitutional?
Seems to me the whole blasted thing might get by the Court with such an adjustment, but would differ not a lick in substance from the bill as it stands now.
Mandates mean that our property is not ours. Think about it.
Taking my money (taxes) isn’t a taking of property? You distinguish between money and property?
Your complaint about Romneycare is a distortion. You intimate that pre-Romneycare, MA residents (and all of us) were not already paying for other people’s healthcare (to say nothing of their rent and food). We were doing precisely that. Romneycare arguably reduced the extent to which that was being done; in any case it did not inaugurate something fundamentally new.
The iceberg is approaching. Stop obsessing over Romney having signed onto what is, in effect, the rearangement of chairs on the deck. Romneycare is not the sum total of what he has to offer; it’s a -2 blemish, not the -20 you make it out to be.
Do you really believe there is no difference between forcing someone to pay a private company money for insurance, and forcing someone to directly pay the government more money for insurance? One of the great criticisms I have seen from conservatives about the current insurance system is that healthcare consumers have no idea what services actually cost, and the government mandating a 3rd party be involved will not help this problem. I am a disciple of DrRich, whose scheme is described thus:
Very sorry to belabor this, Prof. Rahe, but what if the fine in Obamacare (or Romneycare or whatever) were replaced by a tax break for compliers and a denial of the break for the rogues. Would it then be constitutional?
Seems to me the whole blasted thing might get by the Court with such an adjustment, but would differ not a lick in substance from the bill as it stands now. ·39 minutes ago
Just a (probably naive) technical question: Would a tax preference work if the folks whom the mandate is intended to capture are outside of the tax system in the first place? How are they captured by the mandate? I’m just trying to understand the mechanics of this.
Liberal Jim wrote:
I like Liberal Jim’s phrasing of your position, Dr. Rahe. I think that *is* what you are saying, and that it is right. It is similar to providing public education but then giving vouchers to those who pay for the schooling of their children themselves, which we’ve started doing on a limited basis here in Indiana. To be sure, it resembles Obamacare, but it is open and honest about its funding, and it does not actually require anybody to take action— just to pay a higher tax.
When governments have required citizens to spend their money on something is a good question. Were militiamen required to have a gun? Certainly in the Middle Ages, vassals were required to provide military personnel and equipment. I guess the difference is that in both cases, the government was really collecting taxes in kind, rather than trying to control the citizens’ spending on private goods, goods that would value only himself.