February 2, 2011
Private: Former Reagan Solicitor General Testifies that Health Care Mandate is Constitutional
Affordable Care Act, health care, Health Care Reform, individual mandate, Judge Roger Vinson
Harvard law professor Charles Fried, the former solicitor general under President Ronald Reagan and a longtime Federalist Society member, told the Senate Judiciary Committee today he is "quite sure that the health care mandate is constitutional," TPM reports.
During a hearing on the Affordable Care Act's constitutionality, Fried explained that, although "there are limits to what may plausibly be called commerce," the business of health insurance is "undoubtedly commerce" as defined by the Constitution's Commerce Clause.
He added that the requirement that all Americans enroll in health insurance or pay a penalty is absolutely "necessary" as defined by the Necessary and Proper Clause of the Constitution.
"To allow the young and well to wait until they are older and sicker to enroll is to design a system of private insurance that cannot work. Everyone knows that," he said in his written testimony.
Fried testified today along with Oregon Attorney General John Kroger, Georgetown University Law Professor Randy E. Barnett, Jones Day Partner Michael A. Carvin and former head of the Justice Department's Office of Legal Counsel Walter Dellinger, a member of the ACS Board of Advisors. The hearing comes in anticipation of planned votes on whether to repeal some or all of the Affordable Care Act, and two days after U.S. District Court Judge Roger Vinson ruled that the individual mandate provision was unconstitutional, and that the entire health care law must therefore be invalidated.
Constitutional experts called Vinson's opinion a striking deviation from decades of settled law that is very likely to be overturned.
"The idea that Congress lacks the authority to regulate [the health care industry] is a truly astonishing proposition," Dellinger said during an ACS and Center for American Progress press call Monday.
Orin Kerr writes for The Volokh Conspiracy that Vinson failed to follow the very basic principle of stare decisis: "Judge Roger Vinson is only a District Court judge. Under the principle of vertical stare decisis, he is bound by Supreme Court precedent," Kerr writes, pointing out that Vinson focuses on "Alexander Hamilton and Federalist No. 33" rather than the recent Supreme Court precedents by which his court is bound.
Last month, some 130 law professors signed onto a statement declaring the constitutionality of the Affordable Care Act "unambiguous."
Watch video of Fried's testimony below and read written testimony here.