Earlier today, Harvard law professor Charles Fried, who served as Ronald Reagan's solictor general from 1985 to '89, told the Senate Judiciary Committee that he was certain the health-care mandate was perfectly constitutional. "I come here not as a partison 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. ButI 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 isto 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 rulemore accurately, part of a system of rules by which commerce is to be governed, to quote Chief Justice Marshall. And if that werent enough for youthough it is enough for meyou 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 actsurely, to regulate health insuranceand 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 Vinsons 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.

(H/T Think Progress)

Grant Gallicho joined Commonweal as an intern and was an associate editor for the magazine until 2015. 

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