In March, Lee Fang pressed Mitt Romney on the constitutionality of health care reform, asking the former Massachusetts governor if he believed that the individual mandate at the center of his own health care reform effort was, in fact, unconstitutional. Romney refused to answer, telling Fang, “You know I’ve got a long discussion that I could give you on that, but I’m in too harp hay of a hurry right now but I think we have that on the site.” “I think I’ve answered that the best way I can right now which is it’s a big topic and I’m happy to discuss it at length but I just can’t do it in the hall going to the elevator,” Romney said as Fang followed him down the hallway of the National Press Club.
Fortunately, Romney finally had enough time to dig into the intricate legal underpinnings of the constitutional question during his book tour in New Hampshire:
In an interview at the Union Leader this morning, Mitt Romney said President Obama’s health care plan was an unconstitutional violation of the 10th Amendment.
Romney has been saying that a key difference between his Massachusetts health care reform and President Obama’s reform is that his was a state plan and Obama’s is a federal plan. In speeches in New Hampshire last night and this morning, he defended his plan (as he has before) by noting that the 10th Amendment reserves powers to the states that are not explicitly granted to the federal government…
In a scheduled interview this morning, I asked Romney if Obama’s individual mandate unconstitutional in ordering individuals to purchase a commodity. “I’m not enough of a judge,” he said. “I think it’s unconstitutional on the 10th Amendment front.”
Who new it was actually that simple? The Washington Posts’ Greg Sargent points out the absurdity of trying to argue that a mandate is only unconstitutional if the federal government imposes it, but it’s also worth noting that Romney’s answer makes little legal sense. He doesn’t say that government can’t mandate the purchase of insurance — after all, his own health care law does that — only that it’s a right reserved to the states. But, of course, that’s not how the Supreme Court sees it. The Court has decided that the Commerce Clause grants Congress the authority to regulate economic activity among the states. And, since federal laws are supreme to the laws of the states (under the supremacy clause), states have to heed the new mandate requirements. The tenth amendment only provides that states retain powers that are not granted to Congress.
Romney was also asked if “any other federal programs currently in place violate the 10th Amendment, he said, “I don’t have any I can point to at this stage.”