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


James Madison, with his tiny arms, started a war with Britain then fled the White House while Redcoats burned it down.

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…

NEXT: Watch Boehner, Cantor and Pelosi Responses to ObamaCare Ruling

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  1. Very disturbing column from Ronald Bailey circa 2004 presented in the thread below, you should read the entire horrific mess:


    So after dropping and obsequiously fellating the individual mandate, Bailey still writes for Reason? Amazing.

    1. On environmentalism. Clark Keut covers healthcare.

  2. I always thought that the government can't force you to save because they don't have an individual mandate to do this. Ie, we can't privatize social security without a constitutional amendment.

    But now, just have people pay a tax penalty of $2,500 for not saving into their privatized IRA/SS account. It is constitutional now.

    Look on the bright side!

  3. I'll vote for Romney if he'll campaign on repealing this stupid law and the 16th Amendment. Gotta go back to the beginning.

    1. I can't even tell if Gary Johnson's campaigning on repealing the 16th Amendment. (Not that a president can repeal an amendment.)

        1. Obama's been looking at #2.

      1. (Not that a president can repeal an amendment.)

        Obama campaigned on repealing the constitution. So far it's been working well for him.

    2. Once again! A vote for Romney is a vote for Single Payer! Romeny is a technocrat. He's going to do the same thing he did in MA, which is to listen to all the other bright ideas that the civil service comes up with, carefully peruse the spreadsheets that make a persuasive case for increasing the interventions of government in healthcare.

      The unintended consequences and dislocations caused by that tinkering will be blamed on the free market, and be used to justify increasing coercive socialization with all the poor service, terrible quality and stagnation that results.

      Some people are bitching that Roberts lacked the courage of his convictions. It's a million times easier to vote for somebody like Gary Johnson than it was to do what Kennedy did with all eyes on him.

      This shouldn't be about merely punishing Obama. The Republicans were the original proponents of the critical components of this turkey.

      All of them must be punished!

      1. Dude, he's not going to campaign on repealing the 16th. Johnson's vote from me is safe.

      2. I agree. Whatever small bright points libertoids might be able to pick out of National Federation of Business et al v. Sebelius, the argument for single payer just got a lot closer and harder to refute. The state AGs won't rally against a federal government that offers to pick up 100 percent of the tab. If you look at how the Supremes have ruled on previous just-a-tax decisions, like U.S. v. Lee, the outcome seems to be that the federal program stays in place and the authority of the 16th amendment over the fourth, the ninth and the tenth is broadened.

        Using the 16th rather than the commerce clause just hands more power to the executive branch, it seems to me. But there's a lot to go over and I ain't no lawyer.

        1. I still haven't read the opinion, but I don't see how this isn't a substantial expansion of federal power. What difference does it what twisted justification they come up with if the federal government can do anything? Might as well cite to the Preamble.

    3. The only way this gets repealed is if the Rs win out - both houses and the Oval. I don't see that happening. We are stuck with this, just like SS and Medicare.

      Until the whole thing collapses.

      1. ...and the Rs would need a super majority in the Senate (or at least a few Ds to cross over).

    4. That would win me over.

  4. Well, Romney could admit that he was wrong the whole time, and MassCare proves it, and why Obama needs to be defeated. That would be respectable.

    1. It would be respectable, but if you've paid 1 minute of attention to Romney, he's clearly an upper-management stooge. You never admit your plan was wrong, only that the proles had the lack of vision and fortitude to execute it.

      The closest someone like Romney gets to admitting he's wrong is a memo stating he has enjoyed contributing to the company, but he'd like to pursue other opportunities and spend more time with family. That's the corporate admission of defeat.

      1. yeah...the "spend more time with the family" meme is pretty much the unwritten admission of failure at my company too..funny

      2. Rule #1 of politics in the sound-bite era is never to admit a political mistake.

      3. Say, has Ron Paul said that authorizing those newsletters to be printed in his name was a mistake?

  5. Can someone explain what this:

    Any police power to regulate individuals as such, as opposed to their activities

    means? What would it mean to regulate 'individuals as such'?

    1. You're regulating the individual themselves, and not their activities.

      1. Not sure if trolling.... but

        Would you give me an example?

        What type of regulation would be a regulation of an 'individual as such' that is reserved to the states?

        1. A state requiring liability insurance if you operate a motor vehicle.

          1. That's not a FEDERAL issue, Paul.

            Also, by that logic, people who cannot drive, would be forced to buy car insurance anyway. Because, like, it's not fair that the blind dude gets to skate on the auto policy.

            1. Yeah, but in orals nobody seriously questioned the idea that we will all at some point participate in the health care market. This decision is a defeat for shamans and midwives!

          2. Actually the feds could do that under existing Commerce Clause precedent. Once you engage in something "substantially affecting interstate commerce" you're the feds' bitch. The thing about the mandate was that you don't even have to do anything to fall under the requirement, just exist.

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