Reagan's Solicitor General Says Health Care Mandate Is 'Constitutional'

[oldembed src="" width="420" height="360" resize="1" fid="21"]

Judge Vinson has gotten Conservatives all excited with his wingnut decision which overturns the entire health care bill. You see, loading up the courts with ideologues has paid off for Republicans, but today they were dealt a blow when Charles Fried slapped down the Vinson ruling by saying the mandate is constitutional.


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.

Fried also pointed out that the law would have most definitely been constitutional if it included a public option.

FRIED: As I recall, the great debate in the Senate was between this device and something called the public option. And the government option was described as being something akin to socialism and I think there is a bit of a point to that. But what is striking Senator is that I don’t think anybody in the world can argue that the government option or a single payer federal alternative would have been unconstitutional.

Indeed. In fact, plenty of people would be happy to see the mandate, constitutional as it might be, replaced by a public option which has the additional benefit of being exceedingly cost effective. Some Democrats are apparently exploring alternatives to the mandate. Maybe what they should be looking at is a constitutional expansion of public health systems.

Well, well, well. A Reagan Conservative is throwing water on their fire. He'll be vilified soon enough by the usual parties, including the WSJ. This is ultimately going to play out in the Supreme Court where Justice Kennedy now is the deciding vote. Can't you just wait?


We welcome relevant, respectful comments. Any comments that are sexist or in any other way deemed hateful by our staff will be deleted and constitute grounds for a ban from posting on the site. Please refer to our Terms of Service (revised 3/17/2016) for information on our posting policy.