For months, former Massachusetts Gov. Mitt Romney (R) has been touting an illegal plan to unilaterally allow states to opt out of the Affordable Care Act if he is elected president. In an interview with the Washington Examiner’s editorial board, Romney was unable to provide any legal justification for this proposal, instead pitching the unanswerable question of the proposal’s legality to a questionable legal authority:
PHILIP KLEIN: You’ve said that on day one of your presidency, you would grant Obamacare waivers to all 50 states, as you pursue full repeal. But under the language of the health care law, waivers are subject to a number of restrictions, and wouldn’t apply until the year 2017. [...] [W]hat do your lawyers think as to why these waivers could take place, because I have the law here, and it says that it applies on January 1, 2017 – under the “waiver for state innovation.” [...]
ROMNEY: Then I’d have to have Ben Ginsberg, our lawyer, sit down. If you really want to go into that and tell you what — if that’s important to you, we’ll have Ben Ginsberg give you a call and talk about what provision of the law we would seek to employ.
Although it’s well known that Romney hired Ginsberg to advise his campaign on election law, Romney’s apparent admission that he is receiving general legal policy advice from Ben Ginsberg is troubling. Ginsberg is a GOP election lawyer who, among other things, was part of the team that convinced five Supreme Court justices to effectively name George W. Bush President of the United States in Bush v. Gore. In a 2006 Duke Law School speech explaining his role in that case, Ginsberg also made a surprising admission about what the GOP really thinks about voting rights and equality:
A quick note on perhaps the most interesting issue that came up [during Bush v. Gore] as we dealt with it, and that was Equal Protection . … Now, just like really with the Voting Rights Act, Republicans have some fundamental philosophical difficulties with the whole notion of Equal Protection.
Sadly, Ginsberg isn’t even the only Romney legal advisor to express “difficulties” with the notion of equality under the law. The co-chair of Romney’s “Justice Advisory Committee,” failed Supreme Court nominee Robert Bork, once called the federal ban on whites-only lunch counters an act of “unsurpassed ugliness,” and also believes that the Constitution does not shield women from gender discrimination.