Via BTD, the Wall Street Journal loves Judge Roger Vinson's "exhaustive and erudite opinion" declaring the Affordable Care Act unconstitutional. The paper's editorial board might be experiencing a bit of cognitive dissonance today, following the testimony of Ronald Reagan's solicitor general Charles Fried.
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.
Fried also pointed out that the law would have most definitely been constitutional if it included a public option.
FRIED: As I recall, the great debate in the Senate was between this device and something called the public option. And the government option was described as being something akin to socialism and I think there is a bit of a point to that. But what is striking Senator is that I don’t think anybody in the world can argue that the government option or a single payer federal alternative would have been unconstitutional.
Indeed. In fact, plenty of people would be happy to see the mandate, constitutional as it might be, replaced by a public option which has the additional benefit of being exceedingly cost effective. Some Democrats are apparently exploring alternatives to the mandate. Maybe what they should be looking at is a constitutional expansion of public health systems.