Charles Fried tells the GOP what it doesn’t want to hear

CHARLES FRIED TELLS THE GOP WHAT IT DOESN’T WANT TO HEAR…. Harvard law professor Charles Fried, President Reagan’s Solicitor General, doesn’t love the Affordable Care Act, and isn’t convinced it will work. But as a constitutional matter, Fried has no use for the right’s arguments.

He’d written previously that “the health care law’s enemies have no ally in the Constitution.” Today, he elaborated on this point at a Senate Judiciary Committee hearing, calling the constitutional issue 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.”

True to form, and offering another reminder of what’s become of the intellectual bankruptcy of Republican thought in the 21st century, Sen. Orrin Hatch (R-Utah) said he was “shocked” by Fried’s legal analysis — because it differed from his own. The senator said how much he respected Fried’s expertise, but instead of reevaluating his own thinking, Hatch instead said Fried must be wrong, because Hatch says so.

It’s been that kind of debate.

Support Nonprofit Journalism

If you enjoyed this article, consider making a donation to help us produce more like it. The Washington Monthly was founded in 1969 to tell the stories of how government really works—and how to make it work better. Fifty years later, the need for incisive analysis and new, progressive policy ideas is clearer than ever. As a nonprofit, we rely on support from readers like you.

Yes, I’ll make a donation