Former Reagan Solicitor General: I’m “Quite Sure” The Health Care Law Is Constitutional

A dissenting opinion from the right:

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.

Charles Fried served as Ronald Reagan’s Solicitor General from 1985-1989. In 2008, after serving as an adviser to Barack Obama’s John McCain’s Presidential campaign, Fried announced that he had voted by absentee ballot for Barack Obama, principally due to McCain’s selection of Sarah Palin as his running mate.

FILED UNDER: Health Care, Law and the Courts, Quick Takes, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook


  1. Michael Drew says:

    But, but… activity/inactivity! It can’t be constitutional!

  2. Philip Senerchia says:

    Per the HuffPo link, Fried served as an advisor to (and was an ardent supporter of) the McCain campaign, not Obama.

  3. Yea that was my mistake, Philip. Fixed

  4. tom p says:

    ,” principally due to McCain’s selection of Sarah Palin as his running mate.”

    just couldn’t resist, could you Doug?

  5. EddieInCA says:

    Doug –

    So far, as far as I can tell, there have been 16 decisions regarding “Obamacare”.

    12 judges have tossed out the cases outright.
    2 judges affirmed the constitutionality outright.
    1 judge ruled one section of the law as unconstitutional, but kept it in place.
    1 judge ruled the entire law unconstitutional, and “voided it”.

    Why are conservatives focusing on ONE (maybe two) decision(s), while ignoring the other 14?

    Has our discourse gotten so dishonest that no one can even pretend to be intellectually honest?

  6. Herb says:

    “Has our discourse gotten so dishonest that no one can even pretend to be intellectually honest?”

    Yes, next question.

  7. mantis says:

    Why are conservatives focusing on ONE (maybe two) decision(s), while ignoring the other 14?

    Dumb question.

  8. Eddie,

    Where are your links to the 12 cases? I would suspect that most of them have been dismissed on lack of standing grounds rather than on the merits

  9. PJ says:

    “Why are conservatives focusing on ONE (maybe two) decision(s), while ignoring the other 14?”

    That’s not the big problem, the big problem is why the media is focusing on the two decisions that ruled parts or all of it unconstitutional and not on the other fourteen.

  10. Jack Moss says:

    Why is the issue of Sarah Palin’s selection as VP for McCain any relevance to this story? IMO, a bit gratuitous and petty.

  11. EddieInCA says:

    Doug –



    * A U.S. District Court in New Jersey dismissed on Dec. 9 a lawsuit filed by a cardiologist, a patient and a physicians’ advocacy organization that had alleged the law violates the Commerce Clause and also violated the fifth amendment of the U.S. Constitution. See New Jersey Physicians Inc et al v. Obama et al, U.S. District Court, District of New Jersey (Newark), No. 2:10-cv-01489.

    * On Nov. 30, a federal judge ruled the individual mandate and a requirement some employers buy coverage for employees was legal under the Commerce Clause in a lawsuit filed by Liberty University, a college founded by the conservative evangelical leader Jerry Falwell. See Liberty University Inc v. Geithner et al, U.S. District Court, Western District of Virginia (Lynchburg), No. 6:10-cv-00015.

    * In October, another federal judge partly dismissed a suit filed in Michigan by the Thomas More Law Center, ruling Congress had the authority to enact the law under the Commerce Clause. See Thomas More Law Center et al v. Obama et al, U.S. District Court, Eastern District of Michigan (Detroit), No. 2: 10-cv-11156.

    * A California court dismissed a lawsuit, now on appeal before the Ninth Circuit Court, that said the healthcare law violates individual rights, increases taxes and violates physician-patient privileges, along with violating the Commerce Clause. The district court ruled that the plaintiffs — California state legislator Steve Baldwin and the Pacific Justice Institute — lacked standing to bring the suit. See Baldwin et al v. Sebelius et al, U.S. District Court, Southern District of California (San Diego), No. 3:10-cv-1033.

    * In November, U.S. District Court Judge David Dowd partially denied and partially granted a motion to dismiss a lawsuit filed by U.S. Citizen’s Association in Ohio. While he dismissed arguments that the law violates freedom of association, due process and privacy protections, Dowd is still considering arguments that the law exceeds federal authority granted by the Commerce Clause of the U.S. Constitution. See U.S. Citizen’s Association et al v. Obama et al, U.S. District Court, Northern District of Ohio (Akron), No. 5:10-cv-01065.

    I can find the rest if you desire…

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