SCOTUS On "Police Power," or, How Romney Can Spin RomneyCare v. ObamaCare


In his uphill battle to use fury over ObamaCare in his drive to unseat President Barack Obama, former Massachusetts Gov. Mitt Romney will always have a weak spot in his line: In the Bay State, he instituted the precursor to ObamaCare's individual mandate.

The text of the Supreme Court's ruling in National Federation of Business et al v. Sebelius [pdf] may make it easier for Romney to make his argument that the individual mandate is legal at the state level but not at the federal: 

Because the police power is controlled by 50 different States instead of one national sovereign, the facets of governing that touch on citizens' daily lives are normally administered by smaller governments closer to the governed. The Framers thus ensured that powers which "in the ordinary course of affairs, concern the lives, liberties, and properties of the people" were held by governments more local and more accountable than a distant federal bureaucracy. The Federalist No. 45, at 293 (J. Madison).  The independent power of the States also serves as a check on the power of the Federal Government: "By denying any one government complete jurisdiction  over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power."… 

This case concerns two powers that the Constitution does grant the Federal Government, but which must be read carefully to avoid creating a general federal authority akin to the police power.  The Constitution authorizes Congress to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Art. I, §8, cl. 3.  Our precedents read that to mean that Congress may regulate "the channels of interstate commerce," "persons or things in interstate commerce," and "those activities that substantially affect interstate commerce."…

Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States… 

Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power.  It determines that Congress has used an existing one

Second, Congress's ability to use its taxing power to influence conduct is not without limits.  A few of our cases policed these limits aggressively, invalidating punitive exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority.

Romney still has the problem that in every single category of health care spending, Massachusetts has higher costs than the United States as a whole. The high court's ObamaCare ruling, it seems as I work my way through it, is made mostly or entirely on legal and separation-of-powers arguments, not economic arguments. So Romney still has no economic argument. But he can stand tall and declare, "I had the power to force people to buy health insurance, and I used it within the bounds of existing law and precedent." 

That should win him plenty of votes. 

Romney's actual response

As you might imagine, I disagree with the Supreme Court's decision and I agree with the dissent.

What the court did not do on its last day in session, I will do on my first day if elected president of the United States. And that is I will act to repeal Obamacare.

Let's make clear that we understand what the court did and did not do.

What the court did today was say that Obamacare does not violate the Constitution. What they did not do was say that Obamacare is good law or that it's good policy.

Obamacare was bad policy yesterday. It's bad policy today. Obamacare was bad law yesterday. It's bad law today.

Let me tell you why I say that…