JONATHAN COHN FEBRUARY 2, 2011
Are there any conservative legal scholars out there who dislike health care reform on the merits but still think the individual mandate is perfectly constitutional? There's Harvard Law Professor Charles Fried, for one. Earlier today, at a Senate Judiciary Committee hearing on the constitutionality of the health care bill, Ronald Reagan's old solicitor general called the soundness of the mandate a "no-brainer."
Fried opened his testimony by burnishing his conservative bona fides: "I come here not as a partisan for this act. I think there are lots of problems with it. I'm not sure it's good policy, I'm not sure it's going to make the country any better." Detect a theme here? "But, Fried went on, "I am quite sure that the health care mandate is constitutional." (You can see the longer version of Fried's argument here.)
Later on, Fried scoffed at Judge Roger Vinson's mash note to the Tea Party in his recent decision striking down the bill. "Judge Vinson also said that those who threw the Tea into Boston harbor would be horrified at this," Fried said. "Let me remind you that the citizens of the early United States were well-acquainted with many taxes. Remember the Whiskey Rebellion. The reason they threw that tea in the harbor was taxation without representation. A parliament which they hadn't elected did this to him. Well the people elected a Congress in 2010 and changed the Congress, and that is why we are not subjects, why we are citizens."
Granted, Fried's perspective seems to be losing traction on the right. Randy Barnett—a former student of Fried's and an increasingly influential libertarian legal scholar—was also at the hearing, arguing yet again that the Commerce Clause only allows Congress to regulate economic activity, whereas the individual mandate was regulating inactivity (i.e., it punished people for not purchasing health insurance). After Barnett's testimony, Fried, his face deadpan, wanted to clarify one small matter: "I taught Professor Barnett torts, not constitutional law."
(Flickr photo credit: Harvard Law Record)