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Reagan’s Solicitor General Charles Fried: ‘I Am Quite Sure Health Care Mandate Is Constitutional'

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democracy1st Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Feb-02-11 01:51 PM
Original message
Reagan’s Solicitor General Charles Fried: ‘I Am Quite Sure Health Care Mandate Is Constitutional'
 
Run time: 04:56
https://www.youtube.com/watch?v=-UGQIkYEBPo
 
Posted on YouTube: February 02, 2011
By YouTube Member: ThinkProgress2
Views on YouTube: 188
 
Posted on DU: February 02, 2011
By DU Member: democracy1st
Views on DU: 792
 
In a Senate Judiciary Committee hearing today on “The Constitutionality of the Affordable Care Act,” President Ronald Reagan’s former Solicitor General — Harvard Law Professor Charles Fried — tore into the reasoning of Judge Roger Vinson’s decision striking down the Affordable Care Act, saying the issue should be a “no brainer”:

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.

If the right-wing argument against the mandate is accepted, Fried argued “not only is ObamaCare unconstitutional, but then so is RomneyCare in Massachusetts.”

http://thinkprogress.org/2011/02/02/fried-aca/
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DJ13 Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Feb-02-11 01:57 PM
Response to Original message
1. It really doesnt matter
It will end up in review by the USSC, and theres a right wing majority there that will strike it down.

Its time to stop the hand wringing and get to work coming up with a proper tax to pay for the insurance after the mandate is killed off.

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SlimJimmy Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Feb-02-11 02:45 PM
Response to Reply #1
2. Agreed. In order to pass Constitutional muster, a single payer,
tax driven system must be put in place. A public option, or the current "mandate" just aren't going to fly. Scream all you want, cry, talk about car insurance; but the bottom line is what it is.
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Puppyjive Donating Member (117 posts) Send PM | Profile | Ignore Wed Feb-02-11 03:34 PM
Response to Original message
3. General Welfare
Isn't our constitution suppose to provide for the general welfare of the people? Does welfare include health care? It doesn't say anything in the constitution about providing welfare for those who can afford it. We have taken a fundamental human need and turned it into a commodity so that only those who can afford it receive it. The same thing is happening to education. It is not equal for all. Why people in this country want to continue to conquer and divide is beyond me.
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SlimJimmy Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Feb-02-11 03:43 PM
Response to Reply #3
4. Section 8 enumerates the specific powers granted as they relate to the "welfare and defense".
Section. 8.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

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