Opponents of President Barack Obama's health care program lost the legislative battle, but they have high hopes of stopping it yet. That could be accomplished by defeating Obama in 2012 and electing a Republican Congress. Or it could be done sooner, without an election, by the Supreme Court.
But one eminent conservative legal scholar says: Dream on. Harvard Law professor Charles Fried, who was solicitor general under President Ronald Reagan, believes the constitutional argument against ObamaCare is so weak that even the Roberts court will reject it.
The legal challenges argue that it rests on an unconstitutional provision: the requirement that every individual either buy health insurance or pay a fine. The chief proponent of this theory is Georgetown University law professor Randy Barnett, who says the mandate goes beyond Congress' power to regulate interstate commerce.
"Never in this nation's history has the commerce power been used to require a person who does nothing to engage in economic activity," writes Barnett. "Therefore, no decision of the Supreme Court has ever upheld such a claim of power."
The argument gained new credence when two different federal judges ruled the mandate unconstitutional (though two others disagreed). In January, District Judge Roger Vinson concluded, "If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain."
Fried, who made an unexpected endorsement of Obama in 2008, disagrees—and says he is the norm among his ideological kindred in the academy. "I have not met any scholars who teach constitutional law and are members of The Federalist Society who think it's unconstitutional," he told me by phone, referring to the libertarian-conservative legal group.
His case is simple: Health insurance is commerce. Congress has the power to regulate commerce. Because it has that power, it may also select the means to achieve its goals. The individual mandate is a permissible way to advance the purpose of expanding access to health care.
His interpretation, says Fried, "goes back to John Marshall," a delegate to the Constitutional Convention and the most important chief justice in Supreme Court history. It was Marshall who definitively explained Congress' right "to make all laws which shall be necessary and proper for carrying into execution" its specified powers.
"It must have been the intention of those who gave these powers to insure, so far as human prudence could insure, their beneficial execution," he wrote in 1819. "This could not be done by confiding the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate, and which were conducive to the end."
In this case, the mandate serves a central function. If you compel insurance companies to accept all applicants, you create an incentive for consumers to go uncovered until they get sick, which would either bankrupt insurers or inflate premiums astronomically. Requiring coverage solves that problem by maximizing the size of the insurance pool.
It also eliminates the burden of "free" care that hospitals must provide to "emergency" patients who lack insurance. If taxpayers may be forced to pay for such treatment, the thinking goes, those patients may be forced to get coverage (or else pay a fee for declining).
Fried is not persuaded by the argument that, though the government may regulate activity, regulating inactivity—the failure to buy medical insurance—is an unprecedented violation of personal liberty. Mere novelty, he says, is not disqualifying.
Nor do the Constitution's guarantees of personal liberty necessarily protect an individual's right not to do something. In 1905, the Supreme Court unanimously ruled that the state of Massachusetts could fine anyone who refused to get a smallpox vaccination—a far more intrusive and intimate command than buying insurance.
Besides regarding the mandate as constitutional, Fried sees no defensible way that most of the conservative justices could rule otherwise. Only Clarence Thomas, he says, has written opinions that can support such a narrow interpretation of the Commece Clause.
It may seem like an amazing twist that the same law professor who argues so prominently against the constitutionality of the mandate, Barnett, is a former student of Fried at Harvard Law. The professor thinks there is no real irony. "I taught Randy Barnett torts," Fried says.
Constitutional law? That he learned somewhere else.
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