Tuesday, December 28, 2010

Federalism as a Presidential Campaign Pitch

Everybody knows that Mitt Romney has a daunting political problem. When he was Governor of Massachusetts he signed into law the health care reform bill we now call RomneyCare, which bears a striking resemblance to the national legislation we now call ObamaCare. Above all, both laws provide for an individual insurance mandate that penalizes people for not buying health insurance in the private market. When Romney was running for the Republican presidential nomination in 2008, he never tired of telling Republican primary voters that RomneyCare showed that he had the right stuff to be a conservative president.

How times have changed.  Now Romney finds himself trying to secure the Republican nomination when the party’s base has decided that ObamaCare’s individual mandate is an abomination in at least three respects: (1) it’s legally objectionable because it contemplates an unconstitutional expansion of the power of the federal government; (2) it’s morally objectionable because it’s an unwarranted assault on individual liberty; and (3) it’s inadvisable as a matter of public policy because it won’t prevent the rest of ObamaCare from driving up healthcare costs.

So what can Romney say about ObamaCare that will satisfy Republican primary voters? According to Sam Stein, he’s going to take the only intellectually intelligible way out of his predicament by portraying himself as a born-again federalist. That means mounting a full-throated defense of proposition (1) and trying to finesse propositions (2) and (3) by arguing that what’s morally acceptable and advisable public policy for Massachusetts is bad public policy for the nation as a whole.  Here's Stein:
“The former governor has been unapologetic about the legislation he passed, but always with the caveat that his was a state-tailored solution. There was, however, a time-period when he seemingly championed the plan as a template for the nation as a whole. . . . Romney's team has refined, or at least, sharpened its message. The former governor, they argue, never preached an approach in which the national government brought the Massachusetts model to each and every state. Rather, he believed, as Fehrnstrom says, that other states should have the chance to "copy" the model "or improve upon its features."
It’s always risky to presume sincerity on the part of an ambitious politician, especially one, like Romney, who has a history of all-too-convenient ideological conversions. But let’s assume that his commitment to federalism is real. Can it really bear the political weight that Romney’s apparently putting on it?

As to proposition (1) Romney’s on pretty solid legal ground. ObamaCare’s unconstitutionality under the commerce clause is perfectly consistent with RomneyCare’s constitutionality as an act of state government. Yet I’m not hearing anything convincing about why an individual mandate is good for Massachusetts but bad for the nation as a whole. If you agree with Romney that universal health insurance coverage is an urgent public policy objective and that a single payer system is an unacceptable way of getting there, why should an individual insurance mandate be any less advisable and morally acceptable at the national level than it is in Massachusetts? As long as Romney doesn’t have a compelling answer, he should regard ObamaCare’s alleged unconstitutionality as a regrettable fact, not as the cause for celebration it is among today's Republicans.

That suggests just how hard a political sell Romney’s healthcare pitch will be. Most presidential candidates are fair-weather federalists inasmuch as they worry about constitutional limitations on federal government only when it’s either pursuing a policy objective they don’t embrace, or using means to achieve an acceptable objective of which they disapprove as a matter of political morality. I'm having a hard time remembering a case where a viable presidential candidate took federalism seriously enough to refrain from doing things that he favored doing on other grounds.

To my knowledge, the last presidential candidate who bet any political chips on federalism was Barry Goldwater in 1964 as part of the justification for his opposition to the private accommodation provisions of the Civil Rights Act. And we all remember how effective a political pitch that was. It gained him support among people in the south who liked segregation just fine, but was lost entirely on people who favored integration. 

Yet Goldwater was asking federalism to do a lot less normative work then than Romney is asking it to do now.  Goldwater thought that the dictates of constitutional law and political morality were aligned with each other inasmuch as compelling private restaurateurs and hoteliers to serve people they didn’t want to serve is not only outside the constitutional authority of the federal government, but a violation of the restaurateurs' and hoteliers' property rights and right of free association.  In this respect, his position was formally akin to the current position of the Republican base that ObamaCare is condemned by both constitutional law and political morality.

Romney is telling voters that they should refrain, on federalism grounds alone, from doing something that he believes (and presumably believes that they should believe) is both moral and advisable.  Worse, he'll be telling them that over the din of a slew of Republican presidential hopefuls telling Republican voters what they want to hear about the immorality and inadvisability of ObamaCare.  Good luck with that.

1 comment:

Mandrake said...

As we like to say in my part of the world, Romney is done like dinner