Reagan Solicitor General: 'I Am Quite Sure That The Health Care Mandate Is Constitutional' (VIDEO)

Former Reagan Solicitor General Charles Fried delivered testimony during a Senate hearing on the "The Constitutionality of the Affordable Care Act," expressing, in no uncertain terms, his personal assessment that he is "quite sure that the health care mandate is constitutional."

Here's the key part of Fried's statement, transcribed by ThinkProgress:

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.

Earlier this week, Roger Vinson, a U.S. District Judge from Florida, ruled the entire health care reform law unconstitutional, after finding that the individual mandate aspect of the package constituted governmental overreach.

A blogger at Forbes has highlighted another segment of Wednesday's discussion in which Fried explains, using the same logic, his interpretation that the federal government could, under the Constitution, force citizens to buy vegetables, but not eat them. Whether that would be a good idea, Fried says, is another question.

While Fried announced at the onset of the hearing that he had come to the meeting as a non-partisan observer who had some serious concerns about many other aspects of the bill, it's also worth noting that he voted for Barack Obama in 2008, despite being an avid supporter of Sen. John McCain (R-Ariz.). At the time, he claimed that McCain's choice of Sarah Palin as vice president had forced his decision.

Watch via ThinkProgress below, or view the entire testimony via C-Span:

Comments

[USCOASTGUARDVET]

02:51 PM on 02/05/2011

So True~ Fved

[Jon Dorian]

09:57 AM on 02/05/2011

""...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."

Only if you consider people to be commodities. I thought slavery had ended?

The commerce clause is intended to keep free trade across state-lines, as well as to other nations. It is to regulate, not people, but commerce.

And, since the commerce clause is for maintaining free comerce across state-lines, why do we not allowed insurance companies to compete across state-lines?

[lcr999]

12:12 PM on 02/04/2011

Fundamentally, there is no difference between 1) taxing those who don't have health insurance, and 2) taxing everyone and giving a credit to those who have health insurance.

The net effect is the same.
You can argue about the constitutionality of (1) if you want but the SCOTUS will decide. However, logically, it is identical to (2) and both acts in (2) are definitely constitutional.

[krummlaw]

09:49 AM on 02/04/2011

Have you noticed how so many Republicans change their tune once they're no longer in government? Actually, get reasonable.

Too bad they had Republican myopia while governing.

[JDZSB]

09:42 AM on 02/04/2011

Seniors have no choice with Medicare, for example, when they get to age 65 unless they do without health coverage, and that is not a comfortable situation. Then, when you get on Medicare, which is not free, you find out that it does not fully cover much of anything, so you then need to buy both Medigap and prescription polices to supplement the basic Medicare. When it is all said and done, you find out that the total cost of healthcare insurance and the added costs of paying for costs still not fully covered is more then you were paying for the private insurance prior to going on Medicare. So, just keep this in mind when you support now, under Obamacare, pushing the rest of Americans toward nationalizing healthcare for everyone under control of the government. It is the largest step toward socialism in the history of our country, and you have to buy insurance or be fined. This is not the American way.

[Owba]

10:55 AM on 02/04/2011

Slight mistake you're making. After age 65, people can still purchase coverage privately if they can afford it. Since the vast majority who can afford it don't, clearly Medicare does NOT cost more than private. Indeed, Medicare spends $0.96 of every dollar on care while private now spends $0.85 or less of every dollar on care. Also, the past CEO of United Healthcare received $1.1 billion golden parachute, all of which came out of their customers' premiums. There are no such costs in Medicare.

[Jon Dorian]

10:00 AM on 02/05/2011

One thing you are missing: that is the rest of the people who pay for it in taxes. It cost more when you figure that into the equation.

[boboyaya]

11:53 AM on 02/04/2011

Obviously you never had to buy health insurance when you were over 60. I know of specific instances where senoirs who were not old enough for medicare and needed a new policy are paying between $600 - 1000 per month.

[yogfthagen]

01:32 PM on 02/04/2011

That's it?!? That's AWESOME! Those are great rates! The average American family pays that, and they're not even in the high risk age group!

[Jon Dorian]

10:03 AM on 02/05/2011

I'm a senior citizen. If you want to send me money to help with my insurance, I would appreciate it, but I don't want to force people to support me. Everyone has their own needs to take care of without being forced to take on other dependents.

[coronaboy]

09:08 AM on 02/04/2011

Today, Medicare mandates you buy prescrition coverage. If you don't but subsequently do you are faced with a lifetime penalty premium level. So, what is the difference>

[CongaChile]

08:22 AM on 02/04/2011

"it's also worth noting that he voted for Barack Obama in 2008, despite being an avid supporter of Sen. John McCain (R-Ariz.). At the time, he claimed that McCain's choice of Sarah Palin as vice president had forced his decision"
WOW! A republican with a conscience? Who knew?

[BeachBubbaTex]

08:37 AM on 02/04/2011

They're out there... just too quiet to suit my tastes.

[dragonmaster]

06:20 AM on 02/04/2011

The GOP is simply playing games- yet they persist with their campaign of fear and misinformation- in Order to protect the profits of the health insurance industry, and their predatory like practices.

[Pupadup4oBama]

11:37 AM on 02/04/2011

And the sad thing is, this should NOT be about politics, but, as always that's what they make it out to be.

[Tommygun264]

06:17 AM on 02/04/2011

Wow. Former Solicitor General Fried will be 76 this year and he can still run rings of logical rhetorical around people half his age. Senator Franken looked like it was all he could do to keep from pointing and laughing at the expression on Orin Hatch's face as he realized he was being intellectually spanked by a member of Saint Reagan's mythical conservative Camelot. Isn't it sad how the only sane, intellectually honest Republicans left are over 70 and were pushed out of power 30 years ago by corporate bag men who place petty political gain and the bidding or their corporate masters above the welfare of this nation and the American people?

[dporterdvd]

03:04 AM on 02/04/2011

Fried, an avid supporter of John McCain, said he voted for Obama because of McCain's choice of Sarah Palin as his running mate. Clearly, Fried has a good head on his shoulders and puts his country first.

[maxfax]

02:55 AM on 02/04/2011

"quite sure that the health care mandate is constitutional."

 
How right he is.

[BeachBubbaTex]

08:38 AM on 02/04/2011

Yeah, well I was quite sure Al Gore won in 2000. We'll see when the SCOTUS rules. The law is on the side of sustaining the act; the politics of the court notsomuch

[maxfax]

03:02 AM on 02/05/2011

Amen!  And they hate activist courts.  ha!

[jacqmac]

02:39 AM on 02/04/2011

You know what? The SUPREME COURT reads the SAME decisions that Mr. Fried was referring to. Obviously, he was brought before that committee as a 'star' witness against the Health Care Reform Bill or 'DOLECARE'. Again, obviously, he left the room with mixed results from his testimony. And obviously, HE has at LEAST read the Constitution AND the Supreme Court decisions he quoted.

[Samiiam]

02:08 AM on 02/04/2011

The Kenneday Court.

[Hobsonschoice]

02:08 AM on 02/04/2011

"While Fried announced at the onset of the hearing that he had come to the meeting as a non-partisan observer who had some serious concerns about many other aspects of the bill, it's also worth noting that he voted for Barack Obama in 2008, despite being an avid supporter of Sen. John McCain (R-Ariz.)."

Why is this worth noting? A lawyer, a former soliciter general, gives his opinion of a piece of legislation. Why is it necessary for us to know who he voted for, and as a matter of fact, how do we know that in the first place? Isn't a person's vote a private matter?

[johndtuttle]

03:46 AM on 02/04/2011

no, it's litmus test for the baggers. anyone who voted for Obama is "wrong".