A Vital Healthcare Roadmap for Mitt Romney

Though constitutionally indefensible, Chief Justice John Roberts’ decision to save ObamaCare might prove to be a blessing in disguise. By guaranteeing that the intensely unpopular law stays relevant through November, the ruling could ultimately save the Constitution by securing Barack Obama’s electoral defeat.
That is, if Mitt Romney seizes the opportunity.
Therein lies the problem: so far, Team Romney has played it dangerously safe, campaigning on a one-note economic message that has frustrated many of his supporters into asking him, as the Weekly Standard’sBill Kristol did on July 5, “to get off autopilot and actually think about the race he’s running.”
The problem is amplified on healthcare. Throughout the primary, conservative activists excoriated Romney for the mandate-based plan he enacted in Massachusetts, decrying it as statism and fearing it would make Romney a hypocrite in attacking ObamaCare, leaving the campaign terrified of getting specific enough to invite comparisons of the two laws.
But that caution isn’t just excessive—it’s suicidal. As dissatisfied as voters are with the status quo, they know there’s more to it than the economy. And the case against the dangers of Obama’s second term is fatally incomplete without ObamaCare.
Contrary to the wisdom of overpaid GOP strategists, Mitt Romney can forcefully, comprehensively make that case—and contrary to the hysterics of the Anybody-But-Mitt crowd, he can do it without flip-flopping on RomneyCare.
First, stress that ObamaCare is full of outrages that have no parallel in RomneyCare. For instance, the Congressional Research Service says it’s impossible to count how many new agencies and boards the law creates, making their potential harm unknowable and their accountability impossible. Hammer the scandalous irresponsibility of Democrats inflicting on us something noneofthemevenread, much less understand. Note that the Congressional Budget Office now says the whole shebang is now projected to cost anywhere from $1.76 trillion to $2.6 trillion over the next decade—considerably higher than its original $900 billion price tag. Think that’ll help our $15+ trillion debt, America?
Second, sound the alarm on how ObamaCare will worsen healthcare. Trumpet the results of surveys like the one Jackson Healthcare releasedin June, which found that 70% of doctors don’t think it’ll control costs, 61% doubt it’ll improve the quality of care, and 66% expect it to take decisions out of physicians’ hands; or the one the Doctor Patient Medical Association releasedin July finding that ObamaCare has led 83% of American doctors to consider quitting. Point out that it makes completely dropping insurance the most affordable option for many employers. Explain how it makes insurance costlier to micromanage what services plans must cover.
Third, debunk the lie that Romney and Obama’s healthcare records are equivalent. For example, Romney’s proposal would only have required Massachusetts residents to purchase basic catastrophic insurance, to offset the cost of their federally-guaranteed right to emergency care, and would not have included any employer mandate—vastly different from ObamaCare’s much broader (and therefore far pricier) mandate, which imposes on employer and employee alike broader plans covering things like birth control, maternity care, and drug abuse treatment. It was Massachusetts’ 85% Democrat legislature, overriding Romney’s vetoes, which pushed RomneyCare leftward on these points (Romney also unsuccessfully vetoed the final bill’s coverage for non-citizens and a new bureaucracy it created, the Public Health Council).
Finally, point out the biggest difference of all: while Romney was merely out to insure the uninsured, Obama sees ObamaCare as one step on the longer road to a full-blown single-payer system. Demand the president explain what he meant when he said, “I don’t think we’re going to be able to eliminate employer coverage immediately. There’s going to be potentially some transition process.” Ask how that squares with “if you like your health care plan, you can keep your health care plan.”
Rather than a liability, the true story of RomneyCare contrasts sharply with ObamaCare and illustrates the formidable expertise Mitt Romney would bring to healthcare reform as president. But only Romney can tell it.

ObamaCare: Liberty Lost the Battle, But the War’s More Winnable Than Ever

Conservatives were right about John Roberts.
Not this year, obviously: nobody expected the Chief Justice to fall for the White House’s most laughable justification of ObamaCare’s individual mandate. But we were right in 2005, when George W. Bush nominated the blank-slate jurist to the Supreme Court. Ann Coulter warned us that “stealth nominees have never turned out to be a pleasant surprise for conservatives.” I’ve previously voiced my fear that Roberts worships at the altar of stare decisis.
Despite Roberts’ reasoning, the mandate is manifestly nota tax. As the bill’s text and legislative history clearly show, it’s a penalty expressly justified as a regulation of interstate commerce. Barack Obama himself emphatically denied that it was a tax. Hell, the Court itself acknowledged it’s not a tax—for the purpose of ruling on a different part of ObamaCare. As Anthony Kennedy’s dissenting opinion says, “to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.” (To say nothing of the real elephant in the room: even if it was a tax, it still wouldn’t fall under enumerated powers.)
Jay Cost looks on the bright side: the Court rejected the mandate’s Commerce and Necessary & Proper Clause rationales, which sets valuable precedent. They also affirmed that states can’t be denied Medicaid funds for noncompliance.
That’s all well and good…but is one constitutional provision really protected when government can get away with the same thing by simply calling it something else? Brent Bozell is right: “there will be no rehabilitating” of John Roberts’ new image “as a traitor to his philosophy.” Thanks, Dubya!
Make no mistake: today was a defeat for constitutional fidelity, individual liberty, limited government, and true healthcare reform. But the American people may yet have the last laugh.
The general public deeply, deeply opposes ObamaCare, and doctors keep reaffirming that it’ll make American healthcare worse. The Court just guaranteed that a clear loser for Obama will remain a prominent issue throughout the rest of the campaign. We’re already seeing signs that conservatives are giving Mitt Romney a much-needed enthusiasm boost.
Beyond that, the ruling added two brand-new wrinkles to the narrative, neither of which works to Team Obama’s benefit. First, the mandate can now be characterized as a tax increase, an argument Sen. Marco Rubio is already expertly deploying. Second, Obama now has a new circle to square: were you lying about the mandate not being a tax then, or are you lying now?
Hopefully Romney will incorporate these details into his rhetoric sooner rather than later (his pre-scripted reaction to the ruling desperately needs a tune-up). Either way, the bottom line is that it’s more important than ever for conservatives to dedicating ourselves to keeping the House, retaking the Senate, and—and here’s the part some conservatives still want to suicidally ignore—retaking the White House. Only by electing Mitt Romneycan we hope to repeal ObamaCare and appoint justices with greater respect for the Constitution.
Let’s get to work.

New on Live Action – Kathleen Sebelius Admits She Didn’t Bother to Ensure Contraception Mandate Was Constitutional

My latest Live Action post:
Courtesy of PJ Media, here’s a revelation that’s somehow nowhere near as shocking as it ought to be. Yesterday on Capitol Hill, Secretary of Health and Human Services Kathleen Sebelius admitted that she didn’t bother to check the Constitution or judicial precedent before going ahead with the Obama Administration’s contraception mandate.
Asked by Rep. Trey Gowdy (R-SC) what tests of legal interpretation she used to determine that the mandate struck the right balance with religious liberty, Sebelius answered:

Congressman, I’m not a lawyer and I don’t pretend to understand the nuances of the constitutional balancing tests […] I am not going to wade into constitutional law, I’m talking about the fact that we are implementing a law that was passed by the Congress, signed by the President, which directed our department to develop a package of preventive health services for women. We have done just that with the advice of the Institute of Medicine, and promulgated that rule.

Note well that the combination of congressional votes, presidential signatures, and the opinion of the Institute of Medicine amount to somewhere between nada and zilch when it comes to constitutional law.
Read the rest at Live Action.

Barack Obama and the Left’s Willful Anti-Constitutionalism

The Obama Administration reportedly plans on tweaking the case for ObamaCare’s constitutionality it’ll bring before the Supreme Court, shifting its emphasis from the Commerce Clause, which empowers Congress to “regulate commerce…among the several states,” to the Necessary and Proper Clause, which empowers Congress to “make all laws which shall be necessary and proper for carrying into execution” the federal government’s constitutionally-authorized powers:
“The minimum coverage provision is … necessary to achieve Congress’s concededly valid objective of reforming the interstate market in health insurance,” the Justice Department said in its first Supreme Court brief on the merits of the mandate.
You don’t need to have spent so much as a day in law school to understand that this does nothing to improve the White House’s argument. The Necessary & Proper Clause only helps if the objective is identified by the Constitution, and they’re still relying on the commerce rationalization. Unfortunately for the Left, if we’re going by what the Constitution actually means rather than what they want it to mean, we already know that’s a dead end. Alexander Hamilton explained the Commerce Clause in Federalist 22:
The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intcrcourse between the different parts of the Confederacy. “The commerce of the German empire is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless.” Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of State regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens.
In other words, the intended purpose of Congress’s power to regulate interstate commerce was specifically to prevent the states from discriminating against one another through over-regulation, to erect a uniform standard that would keep the interstate flow of commerce mostly un-regulated. Further, Hamilton’s clearly talking about regulating the actions of state governments, not of individuals. Nothing in the Constitution comes even close to empowering the federal government to compel individuals to purchase a good or service. (For more on the Founders’ understanding of the Commerce Clause, see here.)
The most important thing to understand about this story is that this is not a difficult conclusion to draw. If you have a proper understanding of the purpose behind a written Constitution and how to interpret it, then the rest of the exercise mostly takes care of itself. One need not engage in much heavy theorizing or interpretation thanks to the simple fact that, in most cases, those who wrote the Constitution told us exactly what they meant.
In particular, Barack Obama has no excuse not to know better, considering that the man taught constitutional law. But as Ben Shapiro has been chronicling, Obama’s teaching was defined by an agenda to mislead his students about the law, making originalism subservient to his personal ideology. As president, Obama explicitly chose Supreme Court Justices based on criteria other than their judicial excellence, and his administration has been defined by chronic disregard for any limits on federal and executive power.
Simply put, Barack Obama has no respect for the oath he took to “preserve, protect and defend the Constitution,” and he’s getting away with it in large part because our society doesn’t teach its citizens sufficient constitutional literacy to recognize it. I’ve said it before, and I’ll say it again: conservatives can’t restore America’s founding principles if we don’t wake up and work to break the Left’s stranglehold on education.

New at Live Action – Michelle Goldberg’s Lame, Arrogant Excuses for the Obama Birth Control Mandate

My latest Live Action post:
Hot off the heels of trashing Lila Rose, Newsweek’s Michelle Goldberg jumps into the ObamaCare-contraception fray with a Daily Beast column arguing that forcing Catholic institutions to offer birth control is no big deal. Unfortunately for the Obama Administration, however, her apologia is a train wreck of distortions and non sequiturs:

But many Catholic institutions are already operating in states that require contraceptive coverage, such as New York and California. Such laws are on the books in 28 states, and only eight of them exempt Catholic hospitals and universities. Nowhere has the Catholic Church shut down in response. 

Really? According to the non-partisan National Conference of State Legislatures, the actual number of states with religious exemptions is twenty, making the truth the exact opposite of what Goldberg describes. Maybe that has something to do with why Catholics would consider the White House’s decision a dramatic change in the status quo?

New at American Thinker – Health Care: The Straw That Should Break Newtmania’s Back

Of all the arguments against nominating Mitt Romney for president, perhaps the strongest is that his enactment of RomneyCare and his refusal to disavow it could neutralize the Republicans’ ability to run against Barack Obama’s own intensely unpopular health care plan.  If Romney is the GOP standard-bearer, expect Democrats to play up the similarities and common ancestry of the two plans, challenging Romney to explain why one is a bipartisan success story and the other is an intolerable threat to our way of life.  It’s certainly a concern Republican primary voters must take seriously.
But the idea that Newt Gingrich would be preferable on that score is about as unserious as it gets.  The former speaker may be talking tough now on how “you can’t make the difference” between RomneyCare and ObamaCare and boasting that “I can ask [Congress] to repeal ObamaCare because I haven’t passed something which resembles it,” but the truth is that Gingrich is every bit as compromised on health care as Romney is — perhaps even more so.
You wouldn’t know it from his bluster on the stump, but Gingrich endorsed RomneyCare in 2006.  Despite some criticism of the bill’s imperfections, he “agree[d] entirely with Governor Romney and Massachusetts legislators that our goal should be 100 percent insurance coverage for all Americans” and, to that end, called RomneyCare “the most exciting development of the past few weeks,” with “tremendous potential to effect major change in the American health system.”
Read the rest at American Thinker.

Rick Santorum, Individual Mandates, and Why Gingrich Apologists Deserve Romney (UPDATED)

Especially since the field narrowed, a big part of Rick Santorum’s appeal is that he’s the only serious candidate who has never supported an individual mandate to purchase health insurance, and he’s darn good at explaining why. Earlier this morning, the Right Scoop posted a story which initially threatened to undermine that by suggesting he had supported one in 1994. Fortunately, the Right Scoop updated the original post with more information revealing that the initial characterization of Santorum’s position was incorrect, and then with a 1994 video of Santorum passionately arguing against any such mandate.
Last night, David Freddoso said he “will never understand how Newt became a more acceptable not-Romney than Santorum.” That’s easily the biggest, most tragic absurdity of this entire primary: People are desperate for a more reliably conservative alternative to Mitt Romney, which is understandable, but instead of the obvious choice right in front of them, so many rally around a candidate that’s just as ideologically compromised as Romney, far more personally compromised, and is arguably running on a less conservative platform than Romney. And they’re not only rallying around him, but making support for him into an idiotic grassroots-vs.-establishment litmus test. If Romney winds up as the nominee, these shortsighted hypocrites will have nobody to blame but themselves. They certainly won’t be able to blame me – I’m voting for the conservative.

UPDATE: The Weekly Standard’s Jeffrey Anderson says Santorum has misrepresented Gingrich on healthcare, because the mandate isn’t his current position. But I think Santorum’s point is that, if Gingrich has repeatedly expressed support for the idea at the federal level and even endorsed RomneyCare in 2006, then you have to wonder just how sincere his current position is. Or are last-minute flip-flops only wrong when Mitt Romney does them?

Return of the Daniels Delusion

So there’s a new website collecting signatures to urge Mitch Daniels to throw his hat into the presidential ring.

Er, why?

This is the guy who 1) issued an idiotic call for a delusional, undefined “truce” on social issues; 2) wasn’t exactly a fiscal crusader either as Bush’s OMB director or as Governor of Indiana; 3) caved on Right to Work in Indiana; 4) pushed an ObamaCare-stylestate health plan of his own; 5) came out against an Arizona-style immigration law, and advocated dropping the “law enforcement provisions that have been the ones that have bothered most people”; and supports 6) a value-added tax, 7) a tax on imported oil, and 8) risky defense cuts. 
So please, explain to me what void in the current field Mitch Daniels fills? What qualities does he bring to the table that make him particularly well-suited to either defeat Barack Obama or be a particularly effective president?

A Less Perfect Union: How Will Conservatives Restore States’ Rights?

Note: the following article was originally written in early June for another venue, but I’ve reprinted it here because I think its point is still relevant. It is also cross-posted at RedState.

Thanks largely to the Tea Party movement, the United States is thinking harder about individual liberty and states’ rights than she has in years. But despite identifying the problem, conservatives aren’t any closer to enacting a viable long-term solution for taming our federal leviathan.

Several efforts show promise. Many states have challenged the constitutionality of ObamaCare’s individual mandate to purchase health insurance, guaranteeing an eventual ruling from the Supreme Court. Though worth doing, that’s far too risky a basket to put all our eggs in, since it relies on a majority of the justices to rule based on the text of the Constitution rather than their personal ideologies.

In his popular book Men in Black, constitutional scholar and talk radio host Dr. Mark Levin suggests that Congress should restrain such activist judges via its constitutional authority to place limits on the courts’ jurisdiction and to impeach especially odious judges, and advocates constitutional amendments to give judges term limits and give Congress a supermajority veto over Supreme Court decisions. All these proposals are worth exploring in further detail, but even if enacted, there would still be legislative statism to deal with.

In Minnesota’s 2010 gubernatorial race, unsuccessful Republican nominee Tom Emmer backed a state constitutional amendment forbidding federal laws from taking effect without approval by a two-thirds vote in the state legislature. This proposal’s practical failings are obvious—preemptively nullifying all federal laws until the high bar of supermajority support is met would drastically complicate the law’s execution, and there’s no reason to expect state lawmakers’ decisions will be significantly more pro-Constitution that Congress, instead of simply turning on whether a particular majority happens to agree with whoever controls Capitol Hill at any given time.

In his recent book Power Divided is Power Checked, talk radio host Jason Lewis floats a more radical solution—a 28th Amendment, which would expressly affirm each state’s right to secession: “any state whose inhabitants desire through legal means and in accordance with state law to leave this union of the several states shall not be forcibly refrained from doing so.”

Secession is one of the Right’s more heated inter-movement debates, often distinguishing Libertarian from Republican, Northerner from Southerner. This conservative believes secession-at-will is a dangerous doctrine which undermines the rule of law and forgets the nation’s founding principles. Washington, Hamilton, Jefferson, and Jay all considered the national Union an indispensible safeguard of liberty, and “Father of the Constitution” James Madison explicitly denied secession’s legitimacy, explaining that, as a mutually-binding legal compact, the Constitution cannot be broken by any single party.

Moreover, conservatives need to be honest about secession’s full implications—by breaking away from the country, a state wouldn’t merely be rejecting an unjust administration, but also rejecting our very Constitution as no longer worth defending within the system of government it establishes.

So what is the answer? Taking unconstitutional laws to court would certainly be worthwhile. So would Levin’s proposed remedies. But these aren’t magic bullets, and conservatives need to recognize that the problem is more complex than “good states versus evil feds.” Indeed, bad national politicians don’t just fall from the sky; they start out as bad state and local politicians.

Why do so many Americans accept statism? Because the rest of us have failed to be vigilant in our own backyards. For decades, we’ve let progressive presuppositions about government and society gradually infect our politics, education, and culture. To really change course, we must retake our institutions at the local level, particularly with renewed scrutiny of what our schools are—and aren’t—teaching. We can’t expect future generations to recognize betrayals of our founding principles if they don’t even recognize names like Locke or Publius.

We didn’t get here overnight, and we shouldn’t expect a constitutional rebirth overnight either. Every level of American government and society needs to be scrubbed clean. Meaningful, lasting reform is the work of generations, which will demand from each of us more patience, tenacity, and fortitude than ever before.

McCarthy on the Secret History of Medicare

There’s nobody I agree with 100% of the time, but I honestly can’t remember ever finding Andy McCarthy’s commentary lacking. You should take the time to read his take on what Medicare’s architects were really thinking, and why the system deserves to die:
Medicare was a scam from the start. It had to be a scam because its ostensible purpose — providing health insurance for the elderly — was never the objective of its proponents. Instead, Medicare was a stepping stone to a utopia its champions dared not acknowledge: A compulsory universal-health-care system administered by government experts. FDR’s Committee on Economic Security initially intended to issue a health-care plan in conjunction with its universal, compulsory Social Security proposal in 1934. As Cato’s Charlotte Twight recounts, the former was dropped due to fear that pervasive opposition among the public and the medical profession would jeopardize passage of the latter. But Roosevelt got right back to it the day after he signed the 1935 Social Security Act, empowering the new Social Security Board to study the “related” area of health insurance.
There followed three decades of progressive proposals, each shot down by lawmakers animated by fierce public dissent. The Left realized the dream of socializing the health-care sector was not attainable in one fell swoop, so an incremental strategy was adopted: Get a foot in the door with less ambitious proposals; establish the precedent of government control while avoiding debate over the principle of government control. “Incremental change,” said Medicare scholar Martha Derthick, “has less potential for generating conflict than change that involves innovation in principle.” […]

More shrewdly, proponents misrepresented Medicare as an “insurance” program, with a “trust fund” into which working people paid “contributions” and beneficiaries paid “premiums” that would “entitle” them to claim “benefits.” In reality, there is no “trust fund.” Workers pay taxes — at levels that can no longer satisfy the pay-outs for current beneficiaries. This state of affairs was entirely predictable when Medicare was enacted in 1965 with the Baby Boom well underway. Back in the early days, when the program was flush, the surplus of taxes passed from the “trust fund” into the federal treasury, which redistributed the money to whatever chicanery Washington happened to be heaping money on. In return, the “trust fund” got an IOU, which would ultimately have to be satisfied by future taxes (or by borrowing from creditors who’d have to be repaid by taxpayers with interest). And the “premiums” largely turned out to be nonsense, too: The pols endeared themselves to elderly voters by arranging for Uncle Sam pick up more and more of the tab, or by using the government’s newfound market power to demand that providers accept lower payments.
When Medicare was enacted in 1965, the inevitability of its many adverse consequences was crystal clear. The system was grossly underfunded. The fee-for-service structure (expertly described by Capretta) was certain to increase costs exorbitantly with no commensurate increase in quality of care (indeed, care is mediocre, or worse). But most palpably, the fact that government was at the wheel made Medicare instantly ripe for political gaming and demagoguery. The ensuing 46 years have not only made the obvious explicit; Medicare and its tens of trillions in unfunded liabilities are actually worse than even its most fearful early critics predicted it would be.
McCarthy also throws some cold water on Paul Ryan fanboys like Bill Kristol and Charlie Sykes:
Former House Speaker Newt Gingrich steered the break-out of his presidential campaign into a ditch a couple of weeks ago by suggesting that the Ryan Medicare reform was “right-wing social engineering.” He was wrong, but not for the reason cited by his critics. To be more precise, Representative Ryan’s plan is a surrender to left-wing social engineering on terms the right wing naïvely believes it can accept. Ryan is the darling of a Washington breed of conservative wonk convinced that we can make the welfare state work if we just incorporate a few free-market, family-friendly tweaks […]

Reformers such as Representative Ryan always ignore this inevitable trajectory of entitlement politics. They rationalize that they can make a government-sanctioned bribery system run better, or at least preempt Democrats from making it run worse. Hoping to stave off Medicare, congressional moderates in 1960 passed a bill to provide means-tested medical assistance to the elderly. It only greased the wheels for not only Medicare but Medicaid. In Massachusetts, Romneycare was another well-meaning attempt to install a compulsory statewide health-insurance system that would be less autocratic and costly than the one the Left would have imposed. It is, predictably, a disaster that tends toward ever-more-suffocating government control.
Go read the whole thing, as well as McCarthy’s rebuttal to critic Peter Wehner.