A Virginia judge's ruling earlier this month that a key provision of President Barack Obama's health care law is unconstitutional was hailed as a major breakthrough for all segments of the Republican Party save, perhaps, one.
Former Gov. Mitt Romney (R-Mass.), whose own successful dalliance with health care reform in Massachusetts is cited as an intellectual model for Obamacare, stands to gain little from this specific policy topic being at the center of political discourse.
At least that's how the conventional wisdom goes. And in the wake of Judge Henry E. Hudson's decision, there was, as expected, another wave of debate over Romney's own role in championing the individual mandate for insurance coverage -- the provision that was ruled unconstitutional.
Whether this pattern persists through the 2012 elections (should Romney run) depends on the whims of legal processes and the vindictiveness of the rest of the Republican presidential field. Romney, after all, was not the first conservative to champion an individual mandate. The Heritage Foundation did so as well. But the former governor tends to get the preponderance of attention when the conversation turns in that direction.
As the scrutiny mounts, Romney has begun to fine-tune his pitch for why his own plan made for sound policy, but Obama's amounted to an "unconstitutional power grab by Washington," as aide Eric Fehrnstrom put it.
For starters, team Romney has begun arguing that the better indication of his policy preference would be the 2008 campaign's white paper, not the Massachusetts model. The former, as Fehrnstrom noted in a pre-Christmas exchange with the Huffington Post, is a reflection of what Romney would do nationally -- a "federalist approach to health care reform." It doesn't have an individual mandate but, rather, encourages states to deregulate their insurance markets.
"Mitt said repeatedly in the 2008 campaign that his plan was not designed for the nation as a whole," said Fehrnstrom. "He said states may want to copy parts of it, and perhaps improve on its features, but he was very explicit in saying the federal government should not impose a one-size-fits-all plan on the entire nation."
Whether that frees Romney from the burdens of his own health care law is another story. The former governor has been unapologetic about the legislation he passed, but always with the caveat that his was a state-tailored solution. There was, however, a time-period when he seemingly championed the plan as a template for the nation as a whole.
"I'm proud of what we've done," Romney said during a speech in Baltimore in February 2007. "If Massachusetts succeeds in implementing it, then that will be a model for the nation."
Here too, Romney's team has refined, or at least, sharpened its message. The former governor, they argue, never preached an approach in which the national government brought the Massachusetts model to each and every state. Rather, he believed, as Fehrnstrom says, that other states should have the chance to "copy" the model "or improve upon its features." On this, even critics of Romneycare concede the point.
"I don't recall him or he ever advocating it as a federal model," said Michael Tanner, a health care policy expert at the Cato Foundation who once predicted that Romneycare would be a "flop." "I don't know if he said it shouldn't be. He talked bout it being a model for the nation but I don't know if he was implying that the federal government should do it."
And yet, for all the line drawing and needle threading with respect to federalist versus national approaches, the fact remains that when Romney had a chance to write the health care script, he chose an individual mandate. There may be legal differences between a state and the federal government forcing people to buy insurance. But the political distinctions are hardly that clear. And while, empirically, the individual mandate worked in Massachusetts -- reducing the percentage of uninsured down to three -- critics will likely never excuse what they see as its philosophical flaws.
"I actually wrote a paper at the time on the individual mandate and I said the problem for the individual mandate is it removes the only market mechanism people had against the providers, which is refusal to buy their product," said Tanner.