Reagan’s Solicitor General Charles Fried: ‘I Am Quite Sure That The Health Care Mandate Is Constitutional’

By Ian Millhiser

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.