Let the expert speak

As expected yesterday, the U.S. Senate easily defeated the GOP’s stunt attempt to repeal the health care reform law, much the way you or I might swat an irritant fly. Far more interesting was the appearance of Charles Fried, testifying yesterday in front of the Senate Judiciary Committee, in support of the reform law’s linchpin, the mandate requiring that everyone buy health insurance.Fried is a seasoned constitutional expert who has argued 25 cases in front of the U.S. Supreme Court, and has taught law at Harvard for most of the past 50 years. I’m going to let Fried do most of the talking today, because he can make the slam-dunk constitutional case for the health insurance mandate far better than I. Highlights from his testimony:”I come here today not as a partisan supporter of the Obama administration’s health care legislation…I am also not one who believes that Article I, Section 8 (the Commerce Clause, empowering Congress to regulate commerce among the states) is in effect a grant of power to Congress to regulate anything it wishes in any way it pleases. There are limits to what may plausibly be called commerce…”But the business of insurance is commerce. That’s what the Supreme Court decided in 1944 in United States v. Southeastern Underwriters Association, and the law has not departed from that conclusion for a moment since then…”If insurance is commerce, then of course the business of health insurance is commerce. It insures an activity that represents nearly 18 percent of the United States economy. In this connection, recall Perez v. United States, which held that a very local loan-sharking operation was within Congress’ power to regulate. And if health insurance is commerce, then the health care mandate is a regulation of commerce, explicitly authorized by Article I, Section 8…”Those who argue otherwise, those who insist that it’s unconstitutional to require people to buy health insurance, are “entirely wrong, and, even worse, quite confused.”John Marshall, the first Chief Justice of the United States, wrote in a landmark 1819 court ruling that when Congress is regulating commerce, it “must, according to the dictates of reason, be allowed to select the means.” Marshall’s 1819 ruling is directly applicable to the health care mandate: “Mandatory enrollment by all in the health insurance system seems close to absolutely necessary…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.”Regarding those critics who claim that the health care mandate infringes on personal liberty, as guaranteed by the 5th and 14th amendments to the Constitution, “that question was answered in 1905 by a unanimous (Supreme) Court in Jacobson v. Commonwealth of Massachusetts, upholding…the imposition of a fine for refusing to submit to a state-mandated smallpox vaccination. “By refusing vaccination, Jacobson was endangering not only himself but others whom he might infect. By refusing the much less intrusive and less intimate imposition of a requirement that one purchase health insurance if one can afford it, a person threatens to unravel the whole scheme designed to protect by health insurance the largest part of the population….The Jacobson case, which has been settled precedent for more than 100 years, shows conclusively that the mandate is not an unconstitutional imposition on individual liberty…”To sum up: Insurance is commerce. Health insurance is undoubtedly commerce. Congress has the power to regulate commerce, and that means Congress may prescribe, in Chief Justice Marshall’s words, a rule for commerce. The health care mandate is a rule for commerce.”So, you may be wondering, who the heck is Charles Fried?He served four years as U.S. Solicitor General…for Ronald Reagan. In other words, he was Ronald Reagan’s top government lawyer. One of his books is titled, Arguing the Reagan Revolution. He’s also a founding member of The Federalist Society, the nation’s most prominent conservative legal group. He also testified on Capitol Hill in support of high court nominees John Roberts and Samuel Alito. He was also a prominent ’08 supporter of John McCain (until McCain chose Palin; turned off by Palin – gee, how come? – Fried voted for Obama). The bottom line: His testimony yesterday was in the conservation tradition – a respect for judicial precedent, a strict constructionist reading of what the Constitution actually says.I’m just saying.——-Meanwhile, the quote of the day goes to Donald Rumsfeld (hey, remember him?). In his new memoir, the ex-Pentagon chief recalls that he was summoned to a meeting with President Bush 15 days after 9/11. By then, everybody knew that the 9/11 plotters were based in Afghanistan. Nevertheless:”He asked that I take a look at the shape of our military plans on Iraq…He wanted the options to be ‘creative.'”

 

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Not that I need any more work, but  when The Philadelphia Inquirer recently asked me to write a biweekly Thursday column in addition to the Sunday column, I finally said yes. The first Thursday column is here. It’s one of my favorite topics. The quotes speak for themselves.