The Republican candidate is cheerleading a Supreme Court smackdown of his rival, but such a decision could be tricky for him politically.
After last week's unexpectedly hostile Supreme Court hearings on the president's health-care reform, liberals are nervous, both about the potential gutting of Barack Obama's signature domestic achievement and the political blow an adverse decision could deal to his reelection effort.
But Mitt Romney, Obama's likely general-election opponent, may not want to cheer too hard for that outcome. A court decision invalidating Obamacare could be bad for Romney, too, to the extent that it restarts the debate he likes the least -- the debate about Romney's own health-care record.
Thus far, Romney has eagerly joined the chorus of Republicans calling for the court to overturn the law. In an interview with Fox News' Greta Van Susteren on Tuesday, he joked that he welcomed Obama's preemptive criticism of the Supreme Court.
"Isn't this wonderful, to finally have a liberal talking about judicial activism?" Romney said. "Maybe we can come together on this. We've been concerned about judicial activism for years and years and years."
Romney made sure to add that he's not on Obama's side in this particular complaint: "What the president is complaining about, however, is that the Supreme Court might actually apply the Constitution to the bill that he passed," he said, adding, "I applaud the fact that the Supreme Court looks to be taking the responsibility of following the Constitution seriously."
But Romney didn't say much about the substantive claim the court is evaluating, and that's understandable. The part of the law most likely to be thrown out, after all, appears to be the individual mandate -- a concept Romney famously backed in his own Massachusetts health-care legislation. And while Romney draws a distinction between the two, it's never been a particularly persuasive case politically. If the court throws out the federal mandate, it could embroil Romney in a sticky discussion he's mostly managed to avoid thus far in this campaign.
"There's no question that Romney would be the least capable of exploiting an unfavorable court decision among leading politicians," said Jacob Hacker, a health-policy expert at Yale University and Democratic policy adviser. "He supported an individual mandate in Massachusetts, and most people don't understand the distinction between state and federal mandates."
The case that the federal mandate is unconstitutional rests on the idea that the legislation doesn't fall under Washington's constitutional power to regulate interstate commerce. With a state mandate, there's no such concern. Legally, Romney's view -- that Obama's mandate is invalid while Massachusetts' is fine -- lines up with the case made by the conservative lawyers arguing to throw out the bill.
But conservatives generally dislike the health-care mandate not because they think it violates the Commerce Clause but because they think it violates individual liberty. As such, they have just as much of a problem with the Massachusetts law, and their objections to Romneycare have been a stumbling block for Romney throughout the GOP primary. Romney, for his part, has defended the Massachusetts mandate on philosophical grounds as a mechanism of personal responsibility, even as he terms Obamacare a "national nightmare" and a "multi-trillion-dollar federal takeover."
"He clearly has felt very free to go ahead and criticize the Obama administration [on health care], but he will continue to get pushed on this issue: Why is it bad for the nation if it wasn't bad for Massachusetts?" Hacker said. "If it's a fundamental violation of liberty at the federal level, why isn't it a fundamental violation of liberty at the state level?"
Further, Romney has at times supported a national mandate, despite his insistence now that he only likes the mandate at the state level. He's never really been pinned down on this discrepancy. In 2009, he penned an op-ed advocating "tax penalties" to get the uninsured to buy coverage, and said on Meet the Press that Massachusetts was "a model that worked" and cited as "the right way to proceed" a piece of legislation, the Wyden-Bennett bill, that included a mandate. In a 2008 GOP debate, when the moderator said, "You've backed away from mandates on a national level," Romney responded, "No, no, I like mandates."
In short, Romney's stance on whether government can force individuals to buy health insurance is a seething mass of incoherence and contradiction. He's gotten past it in a Republican primary fixated on anti-Obamacare sentiment chiefly through bluster and through pointing out his opponents' flaws -- including support for mandates, of which both Newt Gingrich and Rick Santorum have a history.
When someone does confront Romney about mandates, things quickly get uncomfortable. Santorum has done it effectively in a couple of the Republican debates. Recently, Fox News' Megyn Kelly played the "No, no, I like mandates" clip, and Romney's response was to disavow the statement: "Time and again, I've pointed out that I'm not in favor of a health-care plan that includes a national mandate," he said, as if the sheer number of times he'd taken one side of the issue rather than the other ought to be enough to weight the matter in his favor. A Supreme Court decision wouldn't change this underlying problem for Romney, but it would reawaken the debate and potentially force Romney to answer more impossible questions about it.
That's not to say Obama would fare any better in this scenario. Though some believe a Supreme Court smackdown would rally liberals to the president's side, the political blow of a president repudiated by the judiciary would likely outweigh any riling-up of the left, in Hacker's view.
Nonetheless, he said, to the extent that a ruling restarts the debate over the virtue of mandates, it poses problems for Romney as well. "At first, Romney's argument was that this was good for the state but bad to impose on the nation," he said. "That was kind of nonsensical, but also artful in not repudiating the [Massachusetts] policy. But now his rhetoric is so strong [on Obamacare] you can't believe today's Mitt Romney wouldn't denounce the Mitt Romney that passed the mandate in his own state."
That's the chief problem for Romney with mandates: The issue has the potential to underscore his reputation for ideological inconsistency. Can he get past it simply by focusing on attacking his opponent and ignoring the question of his own past? Maybe. It's worked remarkably well for him in the GOP primary. But for Romney, the less gets said about mandates, the easier his argument is to make.