Reagan's Solicitor General Charles Fried: "I Am Quite Sure That the Health Care Mandate Is Constitutional"

Wednesday 02 February 2011

by: Ian Millhiser | ThinkProgress | Report

In a Senate Judiciary Committee hearing today on “The Constitutionality of the Affordable Care Act,” President Ronald Reagan’s former Solicitor General — Harvard Law Professor Charles Fried — tore into the reasoning of Judge Roger Vinson’s decision striking down the Affordable Care Act, saying the issue should be a “no brainer”:

I am quite sure that the health care mandate is constitutional. … My authorities are not recent. They go back to John Marshall, who sat in the Virginia legislature at the time they ratified the Constitution, and who, in 1824, in Gibbons v. Ogden, said, regarding Congress’ Commerce power, “what is this power? It is the power to regulate. That is—to proscribe the rule by which commerce is governed.” To my mind, that is the end of the story of the constitutional basis for the mandate.

The mandate is a rule—more accurately, “part of a system of rules by which commerce is to be governed,” to quote Chief Justice Marshall. And if that weren’t enough for you—though it is enough for me—you go back to Marshall in 1819, in McCulloch v. Maryland, where he said “the powers given to the government imply the ordinary means of execution. The government which has the right to do an act”—surely, to regulate health insurance—“and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means.” And that is the Necessary and Proper Clause. [...]

I think that one thing about Judge Vinson’s opinion, where he said that if we strike down the mandate everything else goes, shows as well as anything could that the mandate is necessary to the accomplishment of the regulation of health insurance.

If the right-wing argument against the mandate is accepted, Fried argued “not only is ObamaCare unconstitutional, but then so is RomneyCare in Massachusetts.” Watch it:

Fried does explain that he is “not a partisan” for the Affordable Care Act, and that he has some doubts about whether it is good policy. But Fried’s position on the law’s requirement that all people carry insurance reflects exactly how the Constitution is supposed to operate. Elected officials are supposed to make policy decisions, not judges who have to ignore entire constitutional provisions in order to impose their policy preferences on the law.

All republished content that appears on Truthout has been obtained by permission or license.

Comments

This forum is moderated by software. Please allow up to 15 minutes for your comments to go live and avoid posting the same comment multiple times.

Why does Truth-out consider

Wed, 02/02/2011 - 14:23 — Anonymous (not verified)

Why does Truth-out consider this to be news?

Are you shilling for the "health-insurance" industry?

"If the right-wing argument against the mandate is accepted, Fried argued 'not only is ObamaCare unconstitutional, but then so is RomneyCare in Massachusetts.'"

What makes this a "right-wing argument"? The right wing PROPOSED the mandate decades ago. Requiring people to support a private company is unconstitutional. There is no basis for it in the Commerce Clause, and thinkprogress is in the pocket of the "health-insurance" industry. Is Truth-out joining them?

Regulating commerce does not

Wed, 02/02/2011 - 17:53 — Anonymous (not verified)

Regulating commerce does not mean forcing people to engage in commerce. And Fried or anyone else who is enthusiastic about regulating commerce needs to come and out and say clearly: What is sauce for the goose is sauce for the gander. Let's really regulate it, namely, also the commerce of the financial industry. Why is it just the consumers who suddenly get forced to buy poor products under the guise of "regulation"? Come on, the commerce argument is lame, and we are not so stupid anymore. I am a progressive and I welcome this decision. Obama made a big stgrategic and ethical and also logical error by shelving the public option and single payer from the get-go.

car insurance requirements

Wed, 02/02/2011 - 18:32 — Anonymous (not verified)

car insurance requirements are a bit different as the courts and legislature have somehow determined driving to be a privilege instead of a right. Therefore a users "choice" (unlike breathing) and with this choice the responsibility to maintain appropriate car insurance.

There is a major difference

Wed, 02/02/2011 - 21:00 — a farmer (not verified)

There is a major difference between the federal gov. mandating i purchase private health insurance and a state gov. mandating i buy car insurance.(not that i believe in the justness of either) If i don't want to buy car insurance i can chose to walk, bike or stay home, I cant chose to not exist because i dont want to buy health insurance and if the federal government can decide what products i purchase whats to stop them from dictating every action i perform? I suggest you all look to the federalist papers written buy Madison himself(author of the constitution) where he plainly says the the preamble of the constitution (where the mythic commerce clause is supposed to be)is not a proclamation of unwritten powers and if it were, the federal governments power would be unlimited

I am absolutely for Health

Thu, 02/03/2011 - 01:52 — hbro (not verified)

I am absolutely for Health Care. Living should not be a thing that money can buy, to paraphrase the old lullaby.
Obama made this an issue of Health Insurance instead of Health. It guarantees a new market of millions of new insured, paid for by the taxpayer. And it guarantees the insurance companies a profit of 15% and administrative costs down from 30% to 50%, (in the Bush privatization of Medicare) to 15% to 30%.
As those guarantees to the Insurance companies would break the bank, a mandate was added to force everyone to buy health care.
Now the government's share of corporate profits could be portrayed as a subsidy to the poor.
But it's still a law passed for the Insurance Corporations.
Medicare and a government operated single payer Health Care do not contain the need for profits and do not't encourage maximum "administrative costs.
That's why other countries have better health care for less money.
The ideal solution would be for this bill to go down and be replaced by a true Health Care initiative, but, with the government of Republicans and their allies, those Democrats who are really Republicans, that is not likely to happen soon.

There is no law and no

Thu, 02/03/2011 - 08:30 — Anonymous (not verified)

There is no law and no legitimate authority in the United States of America.

Scalia is a bestial Mafia thug; Thomas is a degenerate thief. Roberts and Alito are mere sentient feces. The rest of the Supine Cunt are colorless petty-bourgeois time-servers and ass-lickers.

This filth should be dismissed immediately. They have no rights.

They and all refuckingscum deserve what Hosni Mubarak deserves.

Revolution now!

To those who think the

Thu, 02/03/2011 - 10:32 — Ken Hall (not verified)

To those who think the SCOTUS will rule against the insurance mandate: don't be too sure! The majority on the SCOTUS are very pro-business, put there by very pro-business conservatives. Conservatives for decades have been chipping away at the Bill of Rights. Scalia, Thomas and Roberts don't care about the common man or respect the BOR, the recent Citizens United ruling should tell you that. The insurance mandate is a very pro-business, and our conservative Supreme justices are very activist, are pro-business, and have many close friends in the business community. While I agree it is a terrible law and what the US really needs is single payer, as in every other industrialized nation in the world, I'm pretty sure the SCOTUS will give it a passing grade.