Charles Fried is a professor of law at Harvard University. From 1985 to 1989, he served as President Ronald Reagan’s solicitor general. He specializes in constitutional law and is the author of many books on the subject, including 2004’s “Saying What the Law Is: The Constitution in the Supreme Court.” He also wrote a brief on behalf of 104 law professors arguing that the individual mandate is constitutional. We spoke this morning.
Charles Fried: First of all, the limiting principle point kind of begs the question. It assumes there’s got to be some kind of articulatable limiting principle and that’s in the Constitution somewhere. What Chief Justice John Marshall said in 1824 is that if something is within the power of Congress, Congress may exercise that power to its fullest extent. So the question is really whether this is in the power of Congress.
Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story.
Here’s another thing Marshall said. To regulate is “to make the rule for.” Does this make a rule for commerce? Yes!
EK: The Court seemed to see it as considerably more complicated than that.
CF: There’s all this stuff that got in there about creating commerce in order to regulate it. ... But quite apart from that, what is the commerce? The commerce is not the health insurance market. The commerce is the health-care market, as [current solicitor general Donald] Verrilli said a million times. And it’s very hard to deny that.
There is a market for health care. It’s a coordinated market. A heavily regulated market. Is Congress creating the market in order to regulate it? It’s not creating it! The market is there! Is it forcing people into it in order to regulate them? In every five-year period, 95 percent of the population is in the health-care market. Now, it’s not 100 percent, but I’d say that’s close enough for government work. And in any one year, it’s close to 85 percent. Congress isn’t forcing people into that market to regulate them. The whole thing is just a canard that’s been invented by the tea party and Randy Barnetts of the world, and I was astonished to hear it coming out of the mouths of the people on that bench.
EK: It seemed at times that Verrilli was struggling to articulate a limiting principle. Was that because he felt he needed to appeal to Kennedy and Roberts by almost inventing a limiting principle that isn’t really evident in the case law?
CF: I think Don did a perfectly fine job. The only thing that I missed was the kind of passion and rhetoric which we were hearing from the other side of the bench. I don’t know if I can fault him for that.
EK: It also seemed that the framing of the question from the conservative justices was quite bad for the Obama administration. Once you’re talking about activity/inactivity distinctions, is the case already lost?
CF: Activity and inactivity is not in the Constitution. Now, there are millions of cases that talk about the power to regulate activities that affect interstate commerce, from which Randy Barnett drew the conclusion inactivity is not included. It just hadn’t come up!
And if 95 percent of them are in that market every five years, they’re in it. They haven’t put that off. They’ve gone to a health-care clinic. They’ve procured a prescription for a prescription drug. Ninety-five percent of the population! So where’s the inactivity?
The other thing is I think it’s Justice Kennedy who said this fundamentally changes the relationship of the citizen to the government. That’s an appalling piece of phony rhetoric. There is an important change between the government and the system. It was put in place in 1935, with Social Security. And it said everyone has to pay into a retirement fund, and an unemployment fund. It was done when Medicare came in in the ’60s. That’s a fundamental change. But this? This is simply a rounding out in a particular area of a relation between the citizen and the government that’s been around for 70 years.
EK: Barnett argues that just because the government can do X, doesn’t mean they can do Y, even if Y has the same effect as X. He also argues that government can do more through the income tax, because that’s clearly spelled out in an amendment.
CF: That’s all very well. So then I’m back to whether this is constitutional. But I was talking about Kennedy’s statement that this is a fundamental change in the relation to citizen or government. Whether it is worked through the tax code or the commerce clause the relationship is the same,. There are technical constitutional arguments, and Randy is right about that and wrong that it’s unconstitutional. But Kennedy’s tea party-like argument that this fundamentally changing the relationship between government and the citizen? Well, I was very sorry to hear it.
EK: Do you read tea leaves on what this means in terms of Kennedy’s eventual vote?
CF: I’d rather not.
EK: To focus on Barnett’s argument, however, is it possible that the government can buy us insurance using our tax money but can’t compel us to buy insurance using our own money?
CF: I’ve never understood why regulating by making people go buy something is somehow more intrusive than regulating by making them pay taxes and then giving it to them. I don’t get it. It was comical to read the Heritage Foundation’s brief attempting to explain why they were changing their position on this. Something needed to be done about this problem. Everyone understood that. So, the Heritage Foundation said let’s do an individual mandate because it keeps it within free enterprise. The alternative was single payer. And they didn’t want that, and I’m in sympathy with that. So now all of a sudden the free-market alternative becomes unconstitutional and terribly intrusive where a government imposition and government-run project would not be? I don’t get it. Well, I do get it. It’s politics.
EK: On that, there’s been a real change from early on, when almost all Supreme Court observers thought this case was a joke, to now, when it seems truly up in the air. Did people underestimate the seriousness of the constitutional questions here, or did they underestimate the politicization of the judiciary?
CF: Politics, politics, politics. You look at the wonderful decision by Jeff Sutton, who is as much of a 24-karat gold conservative as anyone could be. He is a godfather to the Federalist Society. Look at his opinion. Or look at Larry Silberman’s opinion. I don’t understand what’s gotten into people. Well, I do I’m afraid, but it’s politics, not anything else.
Related: My interview with Randy Barnett.