Nine Basic Differences Between
RomneyCare & ObamaCare
by Matt Moody, Ph.D.
Although the Massachusetts Healthcare Law is nicknamed "RomneyCare," to be fair to Mitt Romney, the law was not shaped entirely according to his recommendations.
For example, Governor Romney vetoed eight portions of RomneyCare to include an Employer Mandate, which were eventually all overridden by the a Democrat-dominant State Legislature. Also, from the day it was established in 2006, what has become of mandatory healthcare in Massachusetts is a function of what the present Governor and Legislature have made of it.
Nine Differences Between ObamaCare and RomneyCare
1) The bill called "ObamaCare" is 2700 pages long, and RomneyCare was only 70 pages in 2006. So there are 2,630 more pages of differences between ObamaCare and RomneyCare.
2) RomneyCare was uniquely designed for Massachusetts, but ObamaCare is a one-size-fits-all mandate imposed upon all states, regardless of each state's needs and economic conditions.
3) ObamaCare expands the size and power of federal government beyond the "few and defined" powers delegated by the Constitution, thus diminishing State powers; in comparison, RomneyCare invokes "numerous and indefinite" powers to mandate that citizens be insured, thus preventing some from "gaming the system" — where free-riders were formerly getting government to pay for medical bills when they could afford to buy insurance in the first place.
4) One Trillion dollars is needed to fund ObamaCare — 500 Billion in higher taxes & 500 Billion borrowed from Medicare. In contrast, taxes were not increased to fund RomneyCare, nor were funds borrowed from Medicare.
5) RomneyCare was enacted only after Mitt Romney balanced the state budget; whereas, ObamaCare was enacted during a time when Barack Obama and a Democrat-dominant Congress didn't even try to balance a budget and didn't even propose a budget, but engaged in massive federal spending, unprecedented in the history of the United States.
6) RomneyCare is constitutional by virtue of the "numerous and indefinite" powers reserved to the States via the 10th Amendment to the Constitution; ObamaCare is unconstitutional because it overreaches the limited federal powers enumerated in Article 1 Section 8 of the Constitution.
7) In a June 2011 GOP Presidential Debate sponsored by CNN, Mitt Romney said that "if people don't like it in our state, they can change it." In contrast, Barack Obama has consistently resisted the repeal of his healthcare bill, even when the majority of Americans want to repeal ObamaCare.
8) Mitt Romney passed Massachusetts Healthcare with bipartisan input and support; in comparison, Barack Obama imposed ObamaCare upon Fifty States using a partisan approach that largely excluded input from Republican Senators and Congressmen — and continues to exclude input from "We the People."
9) While the majority of Americans don't want Obama-Care, the majority of citizens in Massachusetts support RomneyCare. According to a 2011 survey by Harvard School of Public Health and The Boston Globe, 63% of Massachusetts residents support the 2006 health law, while 21% say they oppose it.
The Massachusetts Health Care Plan is in place because the citizens of Massachusetts wanted it in 2006, and still want it in 2011. Mitt Romney applied business solutions to make it happen without raising taxes. While a clear majority like the law, nevertheless, any citizen of Massachusetts who doesn't like RomneyCare has 49 other options to break free of the Massachusetts healthcare mandate.
For the 21% of Massachusetts citizens who don't prefer RomneyCare, moving to another State to escape perceived government oppression only works when 49 other States have constitutional power to create their own unique "experiments" in governance. Thus, when a limited Federal Government steadily morphs into a dominating Central Government, constitutionally-defined Federalism slowly erodes. James Madison succinctly described the principle of Federalism with these words:
The powers delegated by the Constitution to the federal government are few and defined.
Those which are to remain in the State governments are numerous and indefinite.
The opposite of Federalism occurs when Americans have an overreaching central government that, in the words of Virginia Attorney General, Ken Cuccinelli, "seeks to plan and control virtually every aspect of our lives and our economy, from health care, to energy, to automobile manufacturing, to banking and insurance." When "We the People" look to central government to take care of every problem, the power and importance State governance is diminished — which is the opposite of Federalism.
Here's how Supreme Court Justice Louis D. Brandeis described Federalism:
It is one of the happy incidents of the federal system
that a single courageous State may, if its citizens choose,
serve as a laboratory; and try novel social and economic
experiments without risk to the rest of the country.
In Erie Railroad Co. v. Tompkins (1938), Justice Brandeis wrote the opinion for a 6-2 majority; Brandeis ruled that there is no such thing as a "federal general common law" in cases involving diversity jurisdiction (interstate lawsuits). This Supreme Court decision overturned Swift v. Tyson (1842) — precedent law which had been in place for 96 years.
This landmark ruling meant that federal courts must apply the law of the State where the legal injury occurred. This High Court decision strengthened the sovereignty of States, and reversed a trend toward centralizing government power.
As established by the Founding Fathers through the United States Constitution, federal government was intended to be limited with "few and defined" powers. But in direct defiance of Original Intent, ever since the New Deal, federal government has gradually grown larger and larger, gaining more and more power — that's not Federalism, that's not what the Founding Fathers put in place.
Why RomneyCare Is Constitutional and ObamaCare is Unconstitutional
Some pundits write about Governor Romney's "magic act" — where Romney campaigns against an ObamaCare bill that is supposedly identical to the law in Massachusetts. PolitiFact.com reports that the two bills have strong similarities, but the biggest difference is being ignored! — the Constitutional Difference.
Mitt said in March 2010 interview, “People often compare Obama's plan to the Massachusetts plan. They’re as different as night and day.” Romney's right! Especially when one deems a Constitutional Bill as "day" and an Unconstitutional Bill as "night."
At the level of legislation, RomneyCare and ObamaCare could be identical to the "t," and still ObamaCare would be Unconstitutional because Article 1, Section 8 does not empower federal government to install a HealthCare Mandate for all 50 States; in contrast, the 10th Amendment does empower State governments to do virtually anything that a majority of State citizens want, and will vote for.
One reason why many Americans perceive RomneyCare to be a problem for Mitt Romney in the 2012 Presidential Election is because they may not understand the meaning of the 10th Amendment to the Constitution, State Police Powers, and Federalism.
Sweeping aside second-hand spin from ideologues, name-callers, and haters, the question of Constitutionality for RomneyCare vs. ObamaCare is best answered by . . . surprise . . . the very words of the Constitution, augmented by other wise words from the Founding Fathers.
Mandate (n.) from Latin mandatum "commission, order," and within the context of elections, mandate is "implicit approval of a policy as conferred by voters to winners of an election."
Mandate (v.) from Latin mandare "to order, commit to one's charge," from manus "hand"
(as in manual) + dare "to give" — literally "to give into one's hand."
The word "mandate," shares the same etymological root as the words "command" and "mandatory." So a mandate is a required rule, regulation, or law that people must follow or face consequences — for if there were no consequences attached, a mandate would have no "teeth" to cause people to conform to a mandatory rule, regulation, or law.
All laws that carry consequences for failure to obey ARE "mandates." The United States is a nation of laws. American citizens are required to obey laws, and if they choose not to obey those laws, then Governments mandate (require) consequences — legal constraints that make those laws mandatory.
Mandates are mandatory commands via laws legislated by authority, and enforced by consequences.
Every State is swimming in mandates: States mandate that children and teenagers must attend school. States mandate that those who drive cars must purchase liability insurance. States mandate that people can't rob banks, steal cars, or commit murder without facing mandatory consequences.
WHY do States establish mandates?
Some Libertarians view most mandates as infringements upon Liberty. In most cases, a mandate will protect a higher Liberty in exchange for giving up a lower Liberty. For Example: Governments mandate speed limits along the roads we travel, and such speed limits increase our Liberty to travel safely. Governments mandate that you and I cannot steal from a neighbor, and such mandates increase our Liberty to own property and enjoy our property, and NOT have it stolen.
Mandates are NOT made to oppress the People, but to protect Higher Liberties. Further, every Mandate is established by the approval of the People, else that Mandate will ultimately be changed via Voting and Elections.
Why is it Constitutional for States to enact such broad mandates? To answer this question, we must examine the words of the Constitution and of our Founding Fathers.
The Constitution delegates to the federal government "few and defined" powers — also called enumerated powers — as set forth in Article 1 Section 8 of the Constitution. The federal government can legislate mandates, but can only do so constitutionally within the constraints of the "few and defined" powers that have been "delegated" by the Constitution.
In contrast to the federal governments limited powers, the Constitution of the United States has explicitly delegated "numerous and indefinite" powers to the States through the 10th Amendment. With State governments having numerous and indefinite powers beyond the federal government's enumerated powers, who then, will check State governments from abusing such broad powers?
ANSWER: We the People possess the power to check governments from abusing and usurping power.
For the People to "secure" inalienable rights of life, liberty & happiness, the Declaration of Independence affirms that "governments are instituted among men, deriving their just power from the consent of the governed."
It's the People who empower governments, and it's the people who change governments:
"That whenever any form of government is destructive of these ends [Life, Liberty, and the pursuit of Happiness], it is the Right of the People to alter or to abolish it, and to institute new Government."
We the people possess the power to check abuses of government. Thomas Jefferson said:
When the people fear the government, there is tyranny.
When the government fears the people, there is liberty.
Why is RomneyCare Constitutional? By virtue of powers delegated by the Constitution, the 50 States have numerous and indefinite powers to legislate mandates to secure inalienable rights. And any time citizens of Massachusetts don't want RomneyCare, they can institute new Government to change it.
Articles claiming that RomneyCare is an "albatross around Mitt Romney's neck," focus on similarities between ObamaCare and RomneyCare at the level of legislation, and skip the Constitutional question. The faulty logic goes like this: If ObamaCare is bad, then RomneyCare is bad too — because they are essentially the same (in terms of the individual mandate and other legislative details).
As to sameness, please reread the Nine Differences listed previously, and then realize the bottom line: RomneyCare is Constitutional because States have "numerous and indefinite" powers; whereas, ObamaCare is unconstitutional because it overreaches the limited federal powers enumerated in Article 1 Section 8 of the Constitution.
Why the ObamaCare Mandate is Unconstitutional
ObamaCare is Unconstitutional because the 2,700 page bill is not just about Affordable Health Care for all Americans; instead, ObamaCare is an enormous usurpation of power that pushes far beyond the limited, enumerated powers delegated to the federal government by the Constitution.
To justify ObamaCare, the federal government must find authority to do so in Article 1 Section 8 of the Constitution — wherein the federal government is delegated enumerated powers that are, as James Madison described, "few and defined" in contrast to State powers that are "numerous and indefinite."
In both the Virginia and Florida Lawsuits against Obama-Care, the federal government has tried to find justification for the Obama-Care Mandate in three clauses from Article 1 Section 8 — the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause.
Here's why each of these clauses fail to justify the ObamaCare Mandate.
The Federal Government has tried to justify ObamaCare through the "Commerce Clause." Here's how the United States Constitution describes that power:
The Congress shall have Power — To regulate Commerce with foreign Nations,
and among the several States, and with the Indian Tribes;
Here is why invoking the Commerce Clause fails: It is clear that "doing nothing" is NOT an act of commerce. Thus "doing nothing" cannot be regulated by the Federal Government via the Commerce Clause. In contrast, if the act of "doing nothing" on the part of some citizens, impacts Life, Liberty, and Happiness with a State, that State can legislate Mandates for the benefit of all State residents.
But the federal issue is not that easy: One Supreme Court case, Gonzales v. Raich, raised a question of "undercutting" in regard to regulating Interstate Commerce. Hence the question arises: Will an American citizen's choice to NOT purchase a good or service (health insurance) have an effect upon Interstate Commerce that "undercuts" a broader regulatory scheme of Interstate Commerce?
But this question jumps the gun! The "act of non-commerce" that is alleged to undercut a broader regulatory scheme, is a commerce question originated/created by the ObamaCare Mandate, in the first place. This means, that the Federal Government is both attempting to originate/create a situation of commerce by law (mandating everyone to buy insurance), and then turning around and declaring: "we must now regulate the commerce we have originated/created."
In other words, the constitutional regulation of "Commerce . . . among the several States" is Commerce that the States originate/create; thereafter, the Federal Government has constitutional power to regulate that State-Initiated Commerce.
So even if "doing nothing" does have an effect upon the regulation of Interstate Commerce, this legal logic leap frogs over the prior question, a question that the Supreme Court has never ruled on: Does the Federal Government have the constitutional power in the first place, to require individual citizens to purchase a product or service — can the Fed force citizens to buy health insurance?
According to the Federal Judges who have ruled in the Virginia and Florida Lawsuits against Obama-Care, the answer is "no!" — the Commerce Clause does not justify the regulation of non-commerce among the States — acts of non-commerce originated/created by the ObamaCare Mandate in the first place.
Necessary & Proper Clause
The Federal Government has tried to justify Obama-Care through the Constitution's "Necessary and Proper Clause," which grants Congressional powers that are not necessarily enumerated powers but always directly buttress an enumerated power. In an 1819 Supreme Court decision, Justice John Marshall wrote that Congressional Authority via the Necessary and Proper Clause, while broad, "its authority is not unbridled." Thus Congress has only power to enact laws that are "within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional." The Necessary and Proper Clause states:
The Congress shall have Power — To make all Laws which shall be necessary and proper
for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution
in the Government of the United States, or in any Department or Officer thereof.
Notice that Congress is empowered to make "necessary and proper" Laws specifically to carry "into Execution the foregoing Powers" — referring to the limited, enumerated powers delegated to the federal government. In other words, mandating that a person must buy health insurance needs to be justified, in the first place, by the few and defined powers listed in Article 1 Section 8 of the Constitution. So the Necessary and Proper Clause can only be invoked as one of the enumerated powers is also invoked. That is why Judge Henry Hudson ruled as he did in the Virginia Lawsuit against Obama-Care.
Judge Henry Hudson ruled that the Obama-Care mandate “is neither within the letter nor the spirit of the Constitution.” (p. 24) "If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such a provision under the Necessary and Proper Clause is equally offensive to the Constitution." (p. 19)
General Welfare Clause
The Federal Government has tried to justify the Obama-Care mandate via the "General Welfare Clause," a clause that is embedded within Congressional Taxation Power. But to invoke the General Welfare Clause, the Government must first establish that the "penalty" for not buying Health Insurance — the very "penalty" spoken of in the 2700 pages behemoth called Obama-Care — is really a tax, and not a penalty.
While the Federal Government does have taxation power via Article 1 Section 8, here's the problem:
In the effort to pass ObamaCare through Congress, President Obama and the authors of Obama-Care played politics with words; trying to distance themselves from the perception of higher "taxes," the President, the Obama-Care authors, and Democrat Senators and Congressmen all called the monetary assessment for failure to purchase health insurance a penalty — and not a tax!
This is precisely why Judge Henry Hudson pointed to the historical record of "pre-enactment representations," where both the "Executive and Legislative branches" consistently called the "penalty" for failure to purchase healthcare insurance, a "penalty" and not a "tax." Thus, Federal Judge ruled that the General Welfare Clause has no force.
NEVERTHELESS, even if the penalty were deemed a tax, there is still a huge Constitutional problem this virtually impossible to overcome: All federal taxes, save income taxes, must be assessed proportionally according to State populations — this is called a "Capitation" Tax.