So it is a tax and it's constitutional. That's -- that's the final word. That's what it is. Now, I agreed with the dissent. I would have taken a different course. But the dissent wasn't the majority. The majority has ruled. And their rule is final.Crawford moves in with the challenge Romney will always have to deal with: You did the same thing in Massachusetts. If this was a tax, then that was a tax. And we expect him always to answer in about the same way: There's a difference between doing something at the federal level and doing it at the state level.
As a lawprof, I see the consistent separation-of-powers theme.
The Constitution gives the judiciary the power to interpret the law, and it gives Congress the power to make the law, but under our system of federalism, Congress's power to make law is limited to a set of enumerated powers. The Supreme Court case was about whether Congress could regulate and require people to buy health insurance, and the answer on that question was that Congress does not have that power. The only reason the Supreme Court appeared to uphold the mandate was that on closer inspection, the Chief Justice decided that there wasn't a requirement to buy insurance at all, despite what the people believed was happening when the law was passed — when the law squeaked by in Congress.
The Chief Justice, the deciding vote, looked and decided that there was no mandate at all, just an option that people were given: Either buy insurance, from a private insurance company, or pay an amount of money to the federal government, and the Chief Justice said that second option, if seen as a tax, could be upheld under the enumerated power that is the taxing power. That may seem awfully strange to people, but in Massachusetts, there was no need to think about it in a strange way like that, because the state's powers are different. The state legislature is not restricted to the Constitution's enumerated powers. The state legislature has the powers of government that are left after the Congress has gotten its set of enumerated powers. That is our system of federalism, and the more expansively the Supreme Court reads those enumerated powers, the less is left for the states, and that is an important rearrangement of constitutional powers.
But that's lawprof talk. Too long. Romney needs to make the federalism point in a convincing, snappy way, and he's got to do it with the interviewer coming at him with the you-raised-taxes challenge — as if the main thing people want to hear about is whether taxes will be raised. And in legal terms, that's just weird, because a penalty — the term used by Congress — is a harsher matter than a tax. The Chief Justice said the "penalty" could be seen as a tax because it was so little that it didn't amount to compulsion. In this view, Congress refrained from forcing people to buy insurance, and because of that, the law survived. But the word "tax" is a hot word in presidential politics, so what was milder ends up seeming more severe.
That's a lot to process in a media interview. You can't say all that. I think I put that in a clear and conversational way, but I know that in political discourse it would sound ridiculously blabby and didactic. And it is Romney's greatest point of vulnerability — his work on health care in Massachusetts. It's especially important that he avoid giving us the feeling that he's dancing around the truth and over-explaining. He says:
Actually, the -- chief justice, in his opinion, made it very clear that, at the state level -- states have the power to put in place mandates. They don't need to require them to be called taxes in order for them to be constitutional. And -- and as a result, Massachusetts' mandate was a mandate, was a penalty, was described that way by the legislature and by me. And so it stays as it was.Pretty good! He's denying that he raised taxes. The same thing, at the state level, isn't a tax, because not only was it not called a tax, but it didn't need to be relabeled a tax — "it stays as it was" — in order to make it constitutional. Relabeling was a special trick needed to conjure up federal power. We didn't need that trick to make it constitutional in Massachusetts.
That's enough to move Crawford on. She says: "Whatever it's called... it means that Americans, if they don't have insurance, are going to pay something, whatever they call it." What I'd jump on there is her use of the word "Americans." Romney was never involved in telling Americans what to do, only Massachusetters. Romney says:
You know, I made it very clear throughout my campaign and actually, while I was governor of Massachusetts, that the issue of the uninsured should be dealt with at the state level. And each state can create their own solutions to meet the needs of their people.Think of the restraint it takes to stop there. Implied in that is: Hello? It was Massachusetts, the most liberal state in the country. What was I supposed to do? I worked with these people to give them something that suited their preferences, as liberals. This is the genius of federalism, that policies are designed at the state level. Massachusetts got a Massachusetts-style policy, and that's not going to be what other states get. It's not one-size-fits-all when you take the federalism — leave-it-to-the-states — approach, which is what I'm talking about. The federal law that the Supreme Court upheld foisted the most liberal state's preference on all of the states. That's what I object to.
Now, that's what I'd be tempted to say, but you can't say all that. It's blabby and defensive, and it's technical and weird. But he essentially said that, didn't he? He can leave it to others to expand into the Massachusetts-specific material.
Crawford goes on to challenge him about he statement — which appears on his website — that he would choose Supreme Court Justices who are like John Roberts. Does he maybe want to change that? Romney says:
Well, I certainly wouldn't nominate someone who -- I knew -- was gonna come out with a decision I violently disagreed with or vehemently, rather, disagreed with.(He disapproved of his use of the word "violently.")
And he reached a conclusion I think that was -- not accurate and not -- an appropriate conclusion. But -- that being said, he's a very bright person. And I -- I'd look for -- individuals that have intelligence and believe in following the constitution.A very bland answer. (Except for the violence.)
Crawford brings up her own journalistic scoop — that Roberts supposedly "switched his vote." "He was initially with the conservatives to strike down the heart of the law, the individual mandate, and then changed his mind to join the liberals to uphold it?" Romney says:
Well, it -- it gives the impression that the decision was made not based upon constitutional -- foundation but instead -- political consideration about the -- relationship between the branches of government. But we won't really know the answers to those things until the justice himself speaks out -- maybe some time in history.See what he did? He got in there and took his shot: Roberts yielded to political pressure. But the punch is pulled. We get an "impression," but we don't "really know," and blah blah blah... maybe someday... history....
He made the harsh criticism and left us feeling that he wasn't harsh, that he was moderate and thoughtful and disinclined to get ugly. And yet, he was ugly enough to hurt.