The Healthcare Mandate: Fed vs. State

It’s the talk in all of Washington at the moment and all across the country.  Probably even moreso than it was back when it was passed… healthcare (otherwise known as “Obamacare”).  The United States Supreme Court began the case this week that will once and for all decide if the law is constitutional or not.  But with the 2012 election taking shape the way it already is, I posted a question the other day on InDeclaration’s Facebook Page that I wanted to go deeper into.  The main part of the debate is the federal mandate.  Can the federal government force a person to buy health insurance?  If the Court strikes this part of the law down (even if it leaves the rest of it in place), it would set a certain precedent that the federal government cannot.  So it begged this question with the election in mind… if the federal mandate is unconstitutional (“Obamacare”) and the government cannot force a person to buy healthcare, does it also mean that the Massachussets mandate (“Romneycare”) is unconstitutional on the same grounds?

Needless to say it’s an interesting question.   It’s a big decision these justices have to make, and it could have bigger ramifications that some of us might be thinking.  Now, I’m not going to sit here and try write my opinion on it.  I already stated my piece on the legislation back before it was passed. (here)  My goal is to focus on the question that I just asked since it would appear that President Obama and Mitt Romney are going to be campaigning against each other in the upcoming election, and both plans are very similar… all the way down to their mandates.  Politifact actually has a nice piece from earlier this month to see if you can tell the difference between the two.  How much do we really know about the history of this mandate?  Let us take a trip back to the 90s and the administration of President Bill Clinton.  It was during that time that Republicans in Congress wanted a federal mandate for people to buy health insurance.  It was their way of countering the plan that was being drafted by Hillary Clinton.  So now wait a second… the Republicans, who have been so adamantly against this public mandate in “Obamacare” (Tea Party Republicans), were the ones that were for a mandate to start with?  Yes, they were.  Former House Speaker Newt Gingrich has recanted though saying that after looking further into the matter once the healthcare debate in the 90s faded out that they saw that it wasn’t a good idea.  Do you buy it?  Not sure if I do since it wasn’t until the current debate (and his run for the Presidency) that he made that comment.  Once again, this is how Washington appears to work.  Even when one side can get the other to go over to its idea, the original side bolts.

So let’s go back to the issue of “Romneycare”… as it is called.  This is the nickname given to the healthcare bill passed in the state of Massachusetts and signed by then-Governor Mitt Romney.  It is said that this was the basis for “Obamacare” which Politifact has rated “Mostly True” since there are some differences here and there.  At the time, Governor Romney vetoed 8-parts of the bill passed by the Massachusetts legislature… which were all eventually overturned.  None of the vetoes were on the mandate which was forcing anyone that lived in the state to buy health insurance.

“Obamacare” is a federal mandate; whereas, “Romneycare” is a state mandate.  In a nutshell, that’s pretty much the difference between the two mandates.  In both cases, the government (federal and state respectively) are forcing the people to buy health insurance (a product).  Some would argue that’s all the difference that is needed.  “Romneycare” is an example of states rights (Amendment 10 of the US Constitution).  But the federal government argues that healthcare “Obamacare” is legal since it is a tax, despite President Obama saying on “This Week with George Stephanopoulos” that the mandate (and the entire healthcare bill) was not a tax.  The reason for his change in terminology… if it is a tax then the Supreme Court can’t make a judgement on it. (NPR) And, if it is ruled that the mandate is a tax, then the Congress does have the right to pass such legislation under Article One of the US Constitution, though I seriously don’t think the justices will believe that argument (NPR).  One might also argue that the federal mandate is unconstitutional because it doesn’t take states rights into consideration with no opt-out options.  But then, I must also ask, where is the line drawn?  If a state government can force you to buy health insurance, then why can’t the federal government?  I don’t think the issue has anything to do with states rights and federal rights.  Both pieces of legislation were passed the same way… through their respective legislatures by the elected representatives of the people.

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

The federal mandate is a violation of individual rights… which are guaranteed by the 9th Amendment to the US Constitution (the above quote)… is also an argument that some like to make.  Whether it is or whether it isn’t is up to the nine justices sitting on the Supreme Court to decide.  However, in Barron v. Baltimore (1833), the Court ruled that it was only enforceable by federal courts against the federal government, and not the states.  So if that’s the case, then the ruling on the “Obamacare” mandate would have no affect on the “Romneycare” mandate because it’s federal versus state.  But, if federal law trumps state law (and the US Constitution trumps everything), then how can the decision by the Court not be applied to the state.  It’s been done before in other cases where a state law has gone all the way to the Court and has been ruled unconstitutional… and that ruling then negated all other similar states laws.  Now yes, that is state against state, but the Supreme Court is still ruling it based on the Constitution.  Even if a ruling overturning the “Obamacare” mandate didn’t automatically overturn the “Romneycare” mandate, wouldn’t the Court be forced to uphold its own ruling (its own precedent) if the “Romneycare” mandate made its way through the court system and all the way to the high court?  Now, we start blurring the line with the aforementioned 10th Amendment… federal vs. states rights.  But then that brings this entire piece full circle it would seem.  If the federal government can’t force you to buy health insurance (or any product), then why can a state government do it?  So now, I’m back to my original question for all of you to answer.  If the Supreme Court rules that the mandate in “Obamacare” is unconstitutional, does that also mean that the mandate in “Romneycare” is also unconstitutional?

Politifact- Switching Sides On The Individual Mandate
Politifact – Romneycare & Obamacare: Can You Tell The Difference?
Politifact – Everything You Need to Know About The Healthcare Law
NPR –  Justices Seem Intent To Get To The Heart Of The Healthcare Law

2 Responses to The Healthcare Mandate: Fed vs. State

  1. dab forex says:

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  2. Russell Dee says:

    I think that if The SCOTUS decides that obamacare’s mandate is unconstitutional then that means that romneycare’s mandate is likewise unconstitutional. I don’t think the 10th amendment would protect the romneycare mandate for the reasons you stated. Specifically, that the US constitution trumps all other things so if the obamacare mandate is unconstitutional then that means the romneycare is unconstitutional. The point is that the SCOTUS is examining whether or not government has the right to mandate citizens to purchase a product for no particular reason other than the fact that the citizens exist. If the government can’t mandate that citizens are forced to do something just because the citizen happens to exist then it seems to me that would apply to all levels of government. Perhaps there would be a difference if the issues in Romneycare and Obamacare were both different but they are not different issues since they are both about an individual mandate in connection with universal health care. I don’t see any way around it since the legal issue is the exact same. I vote that if obamacare’s mandate is not constitutional then neither is the romneycare’s mandate. If obamacare’s mandate is overturned then I would imagine that someone would challenge romneycare’s mandate.

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