Testifying before the Senate Judiciary Committee on Wednesday, Ronald Reagan’s Solicitor General Charles Fried said that even though he believes that there are lots of problems with the Affordable Care Act, he’s “quite sure that the health care mandate is constitutional.”Fried, now a Beneficial Professor of Law at Harvard Law School, told the committee in his opening statement that the commerce clause of the Constitution gives Congress the power to regulate, which is precisely what the law signed by President Barack Obama does.
“To my mind, that is the end of the story,” Fried said. “The mandate is a rule. More accurately, it is part of the system of rules by which commerce is to be governed.”
“The only prohibitions I can think of that this bumps up against — the liberty clause is of the 14th and 15th amendment. If that is so, not only is Obamacare unconstitutional but then so is Romneycare in Massachusetts, and that is an example of an argument that proves too much,” Fried said, referring to state health care reformed signed by former Gov. Mitt Romney.
Also testifying at the hearing on the constitutionality of the health care law (which took place in the wake of a federal judge’s decision voiding the entire health care law) were 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.
In his prepared remarks, Fried said the argument that the health care regulation is not regulation of commerce because it requires an economic act (instead of prohibiting or limiting an economic activity) is “entirely wrong and even worse quite confused.”