Romney's position that MassCare was just fine, while Obamacare is unconstitutional is a perfectly coherent view. Just because it is unconstitutional for the federal government to do something does not automatically make it unconstitutional for a state government to do the same. While I disagree with Romney's defense of the mandate in MassCare as a matter of policy, it does not automatically follow that his legal reasoning is unsound.
Newt Gingrich, on the other hand, seems to defend some variation on the individual mandate at the federal level.
Newt on Meet the Press today:
(Videotape, October 3, 1993)
REP. GINGRICH: I am for people, individuals--exactly like automobile insurance--individuals having health insurance and being required to have health insurance. And I am prepared to vote for a voucher system which will give individuals, on a sliding scale, a government subsidy so we insure that everyone as individuals have health insurance.
MR. GREGORY: What you advocate there is precisely what President Obama did with his healthcare legislation, is it not?
REP. GINGRICH: No, it's not precisely what he did. In, in the first place, Obama basically is trying to replace the entire insurance system, creating state exchanges, building a Washington-based model, creating a federal system. I believe all of us--and this is going to be a big debate--I believe all of us have a responsibility to help pay for health care. I think the idea that...
MR. GREGORY: You agree with Mitt Romney on this point.
REP. GINGRICH: Well, I agree that all of us have a responsibility to pay--help pay for health care. And, and I think that there are ways to do it that make most libertarians relatively happy. I've said consistently we ought to have some requirement that you either have health insurance or you post a bond...
MR. GREGORY: Mm-hmm.
REP. GINGRICH: ...or in some way you indicate you're going to be held accountable.
MR. GREGORY: But that is the individual mandate, is it not?
REP. GINGRICH: It's a variation on it.
MR. GREGORY: OK.
REP. GINGRICH: But it's a system...
MR. GREGORY: And so you won't use that issue against Mitt Romney.
REP. GINGRICH: No. But it's a system which allows people to have a range of choices which are designed by the economy. But I think setting the precedent--you know, there are an amazing number of people who think that they ought to be given health care. And, and so a large number of the uninsured earn $75,000 or more a year, don't buy any health insurance because they want to buy a second house or a better car or go on vacation. And then you and I and everybody else ends up picking up for them. I don't think having a free rider system in health is any more appropriate than having a free rider system in any other part of our society.
While there are certainly ways that a system that included a mandate could be significantly less onerous than Obamacare, there is no way to square the circle on the constitutionality of a mandate. Either a mandate is constitutional, or it is not. Newt claims that Obamacare is unconstitutional, yet still supports a mandate of sorts. He cannot have it both ways.