Former Reagan Solicitor General Charles Fried delivered testimony during a Senate hearing on the The Constitutionality of the Affordable Care Act, expressing, in no uncertain terms, his personal assessment that he is "quite sure that the health care 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.
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