Posted on 04/17/2011 5:41:40 AM PDT by Kaslin
Opponents of President Barack Obama's health care program lost the legislative battle, but they have high hopes of stopping it yet. That could be accomplished by defeating Obama in 2012 and electing a Republican Congress. Or it could be done sooner, without an election, by the Supreme Court.
But one eminent conservative legal scholar says: Dream on. Harvard Law professor Charles Fried, who was solicitor general under President Ronald Reagan, believes the constitutional argument against ObamaCare is so weak that even the Roberts court will reject it.
The legal challenges argue that it rests on an unconstitutional provision: the requirement that every individual either buy health insurance or pay a fine. The chief proponent of this theory is Georgetown University law professor Randy Barnett, who says the mandate goes beyond Congress' power to regulate interstate commerce.
"Never in this nation's history has the commerce power been used to require a person who does nothing to engage in economic activity," writes Barnett. "Therefore, no decision of the Supreme Court has ever upheld such a claim of power."
The argument gained new credence when two different federal judges ruled the mandate unconstitutional (though two others disagreed). In January, District Judge Roger Vinson concluded, "If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain."
Fried, who made an unexpected endorsement of Obama in 2008, disagrees -- and says he is the norm among his ideological kindred in the academy. "I have not met any scholars who teach constitutional law and are members of The Federalist Society who think it's unconstitutional," he told me by phone, referring to the libertarian-conservative legal group.
(Excerpt) Read more at townhall.com ...
Case closed.
I’d be for government-run health care if someone could tell me one — just one — thing government does better than the private sector. (John Stossel for years has been offering $1000 to anyone who can do that.)
How is it news that a leftist Univ professor is overruled by a sitting District Court judge?
Can the Cleveland Indians defeat any of their local little league teams? And in the improbable event they actually played any of those little league teams, would this be some kind of surprise? Or news?
Kinda like that.
Charles Fried must have his own waiver wrapped up.
Somebody should fix the headline to read an “Obama Supporter Defense Of ObamaCare”.
Fight large-scale wars. Unfortunately, with this goes with the need to START large-scale wars so they can do so. Which is why the FF did NOT want a large standing army, but a citizen militia.
There is no conservative defense for Communist programs like this. This man is a Rat in Conservative dress.
Come to think of it, the FS sure has been quiet on that front. Seems to me federalism means the states have some rights, too. As well as individuals.
Does the FS think the 10th Amendment applies still?
In this case, the mandate serves a central function. If you compel insurance companies to accept all applicants, you create an incentive for consumers to go uncovered until they get sick, which would either bankrupt insurers or inflate premiums astronomically. Requiring coverage solves that problem by maximizing the size of the insurance pool.
If my grandma had wheels and pedals, she'd be a bicycle. Similarly: "If you compel insurance companies to accept all applicants..." well, there is the rub, isn't it? This POS legislation also mandates the percentage of profits an insurance company can make. Garbage in, Garbage Out.
Fried is not persuaded by the argument that, though the government may regulate activity, regulating inactivity -- the failure to buy medical insurance -- is an unprecedented violation of personal liberty. Mere novelty, he says, is not disqualifying.
Exsqueeze Me? Baking Powder? Choosing NOT to engage in commerce is NOW engaging in commerce?
It would be VERY interesting to know where this so-called conservative who endorsed Hussein in 2008 WOULD say the gubmint oversteps its boundaries. The Good Chief Justice John Marshall can be quoted all day long, but I've read him, too, and it is not correct to say he believed the power of Congress to regulate was without limit. Marshall may have pushed the limits of authority from what the framers intended, but he didn't go as far as Hussein & Co.
Besides, what would be wrong with CLARIFYING what John Marshall said by imposing LIMITS on Congress? Seems to me like Fried is worshipping at the altar of John Marshall and not the text of the Constitution.
Nor do the Constitution's guarantees of personal liberty necessarily protect an individual's right not to do something. In 1905, the Supreme Court unanimously ruled that the state of Massachusetts could fine anyone who refused to get a smallpox vaccination -- a far more intrusive and intimate command than buying insurance.
Yes, well, there is your federalism at work. A state DOES have a right to govern as it best sees fit. I am not one who has beaten up the Massachusetts plan based on EXACTLY that reason. Look, I think it would be a good idea for MASSACHUSETTS to be responsible for MASSACHUSETTS. If they want to adopt government run health care, that is the essence of federalism--let each state figure out how BEST to function for its unique citizenry. But dammit, don't ask the people of New Jersey or Florida or Missouri or Utah to pay for Massachusetts' bills.
What would happen if Massachusetts chose to run health care one way and Maine chose to run health care a DIFFERENT WAY? Answer: people would be able to see which plan WORKS BEST. And governments and/or approaches would CHANGE to fit the marketplace.
Fried's assertion that the Supreme Court AFFIRMED federalism is an argument AGAINST his position of Congressional control, not a supporting one.
“Harvard Law professor”
stopped reading right there. Isn’t just a bit of our problem directly proportional to giving credibility to pointy headed itellectuals (who couldn’t fingure out how to pour urine out of a boot, with directions on the bottom) instead of our own gut?
This Man-crush many of you have on him for no other reason other than him being a berther, is the silliest thing in political elections I've seen yet.
Charles Fried is a libtard disguised as a “conservative”...bet. =.=
You said it
That whole thing is absurd, anyone who can pretend that Obamacare is NOT a violation of the constitution simply may as well say that the whole document is meaningless. It takes an idiot to think that the founders ever meant to allow for such tyranny and tyranny it is, no other word comes close to describing this monstrosity.
Ayn Rand warned long ago that the toolkit of collectivism includes as one of the most important if not THE most important tool the corruption of language so that nothing is ever clear and they can simply claim that a word means whatever they say at the moment, like Humpty Dumpty. As quoted below in Wikipedia.
“Humpty appears in Lewis Carroll’s Through the Looking-Glass (1872), where he discusses semantics and pragmatics with Alice.
“I don’t know what you mean by ‘glory,’ ” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument for you!’ ”
“But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.
“When I use a word,” Humpty Dumpty said, in a rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master that’s all.”
Alice was too much puzzled to say anything, so after a minute Humpty Dumpty began again. “They’ve a temper, some of them—particularly verbs, they’re the proudest—adjectives you can do anything with, but not verbs—however, I can manage the whole lot! Impenetrability! That’s what I say!”
You can not change the headline. You can only add to the headline if there is room enough
If we pay the fine, do we still have to buy the health insurance?
“Charles Fried”
Obviously.
That said, under what authority does government have the right to demand that you BUY anything?
In a free country, the people are free to spend their money as they choose, in a dicttorship the people must purchase what the government decides.
Wait.... this guy endorsed Obama? And how is he a ‘conservative’ again? Whatta stupid article. The title should be, “Another leftist Harvard professor endorses Statism”.
To the headline: There is no argument, it has already been ruled unConstitutional.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.