Res Judicata: Romney's Plan Won't Acknowledge Federalism

Written by Howard Foster on Monday September 12, 2011

“I believe in the Constitution, by the way when the founders said we will have certain powers at the federal level but we’re going to preserve all those powers at the state level, th[e] 10th amendment. That’s one that I don’t think Barack Obama has read. I know he went to law school: go read the 10th amendment, recognize the power of states.”

That is a quote from Mitt Romney explaining why the president’s health care program exceeds any legislative power conferred by Article I of the Constitution. But is this enough to show Romney's commitment to federalism?

He believes the power to require individuals to buy health insurance is reserved to the states. And so Romney’s health care plan for Massachusetts is on firm constitutional footing (the merits of it aside). Romney is talking quite a bit about the Tenth Amendment and the enumerated powers in Articles I and II of the Constitution. Many Tea Party activists and limited government conservatives are pleased to hear this.

After all, any such talk was considered res judicata, decided, after the Supreme Court swung to the left in 1937 and rejected the federalist challenge to Social Security the National Labor Relations Act and other such programs. In the 1990’s the Rehnquist Court issued a few decisions striking down laws as exceeding congressional power. The question then waned, but is now back with a vengeance in the legal challenges to the President’s Health Care Law.

To date one appellate court has struck down the law as unconstitutionally exceeding the commerce powers of Article I, a second court upheld the law, and last week a third court held Virginia lacked standing to challenge the law. These split decisions will likely have to be taken up by the Supreme Court in the term that opens next month and decided by the end of June, just before the party’s nominating conventions.

We should now start to judge Romney’s commitment to federalism. His campaign issued an extensive document last week laying out how he would “create jobs,” an unfortunate phrase, since the President has no authority to do so. It is called “Believe in America,” but makes no mention of the Constitution, an odd omission for a proponent of the Tenth Amendment. Romney has an ambitious agenda of “streamlining” and “reforming” virtually every area of federal involvement in the economy: energy, labor, oversight of financial institutions, and the judiciary.

Yet two things stand out: First, he only calls for the actual repeal of one law: Obamacare. Surely, a principled federalist could come up with a gigabites of federal laws that exceed the commerce power. For example, where is the Constitutional authority for the Departments of Education, Energy, OSHA, and Labor? I’m not saying he should campaign on a platform of outright repeal of half the government. But, a principled yet realistic approach would acknowledge that these vast exercises of federal power exceed explicit constitutional authority and should not be allowed to encroach further on the states.

If the states have the primary authority to regulate these areas, then Romney should propose federal-state partnerships to carry out these programs with a long-term objective of minimizing the federal role as much as possible.

Second, the whole process of remaking the government is too vague for my taste. For example, in discussing energy policy, he says his overall objective is to “immediately move to evaluate existing programs, eliminate redundancy, and consolidate funding streams.” This is what every presidential candidate and every president, says. It is meaningless bureaucratese. And it is a tacit acknowledgement that all existing programs are properly authorized by some provision in the Constitution.

Where are the states in this process? What limits to federal power does Romney actually believe in? When it comes to “litigation reform,” one of his priorities, Romney actually wants more federal power to limit damage awards. He does not expressly say he wants Congress to limit awards in state courts, but this is fairly implied because 80% of all cases are filed there. So capping damage awards just in the federal courts would not make much difference. Here he places the interests of corporations and doctors way ahead of the states. Why? He does not make a compelling argument for doing so. Nor does he define what an “excessive” award is. Does he want Congress to bar all punitive damage awards in cases of intentional torts? This would be radical indeed. Or how about the English loser pays rule? This is not well thought out, and like much of the document, dissolves into vagaries about tinkering with the status quo.

I was hoping Romney, both a lawyer and a capitalist, would have thought seriously about how to apply the notions of federalism to our current problems. He utterly failed to do so and confirms the impression that he regards federalism as merely a justification for his healthcare maneuvering.