Reagan Solicitor General, Charles Fried, critical of conservative activist SCOTUS

Posted by AzBlueMeanie:

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.

Professor Fried spoke to Greg Sargent after three days of oral argument on the Affordable Care Act and was highly critical of the conservative activist Justices of the U.S. Supreme Court. How did legal observers and Obamacare backers get it so wrong? – The Plum Line:

[F]ormer Reagan Solicitor General Charles Fried was scaldingly critical of the willingness of the conservative bloc of Supreme Court justices to traffic in some of the most well-worn Tea Party tropes about Obamacare.

“I was appalled to see that at least a couple of them were repeating the most tendentious of the Tea Party type arguments,” Fried said. “I even heard about broccoli. The whole broccoli argument is beneath contempt. To hear it come from the bench was depressing.”

Professor Fried earlier gave interviews to Greg Sargent and Ezra Klein of the Washington Post.

Here is Greg Sargent's post, Yes, there is a `limiting principle’ – The Plum Line:

At this point, it seems likely that Obamacare’s fate will hinge on whether Justice Roberts or Justice Kennedy come to believe there is a “limiting principle” under the government’s theory of the individual mandate.

* * *

So here’s a limiting principle: Under the mandate, Congress still does not have the power to regulate activity or inactivity that doesn’t have a substantial impact on interstate commerce.

This comes by way of Charles Fried, the former Solicitor General to Ronald Reagan, a supporter of the law. In an inteview with me, he responded to the various lines of questioning advanced by the conservative bloc of justices yesterday.

“There is a limiting principle,” Fried said. “Congress can’t regulate something that isn’t interstate commerce.”

At yesterday’s hearing, Kennedy suggested that it is beyond Congress’s authority to force people to purchase something they do not want. “Can you create commerce in order to regulate it?” Kennedy asked.

Fried rejected the logic on display here. He said that under the mandate, Congress isn’t “creating commerce,” it's merely regulating how inevitable commerce will be paid for.

“You’re not compelling commerce here,” Fried said. “That assumes the commerce is the insurance. But the commerce is the health care. You’re regulating how it’s paid for. They’re not creating commerce; they’re creating the way you pay for it.”

In another potential threat to the law, Justice Alito argued that under the government’s theory — that everyone will need health care at some point — the government could also force you to buy burial insurance, since everyone dies. Another version of this argument: Since everyone has to eat, the mandate would empower government to force you to eat broccoli.

But Fried rejected this logic of unlimited government power, too. He pointed out that the theory of the mandate also requires the absence of such a mandate to have a major impact on interstate commerce. That’s the case when many people don’t have health insurance in a world where insurance companies can’t discriminate against those with preexisting conditions. It’s not the case with burials or broccoli. In neither case does the absence of mandating those purchases have far reaching effects on interstate commerce.

Alito’s argument, Fried said, “assumes that somehow not having burial insurance has a substantial economic impact. The uninsured in health care have a substantial effect for interstate commerce.”

Fried boiled down his limiting principle this way. Even in a world with an individual mandate, “Congress cannot mandate a mode of provision for payment when there’s no claim and no showing that without the mandate, there will be a substantial effect for interstate commerce.”

Here is Ezra Klein's post, Reagan’s solicitor general: ‘Health care is interstate commerce. Is this a regulation of it? Yes. End of story.’:

Charles Fried, who served as Reagan’s top lawyer, was not impressed by the Supreme Court yesterday.

Ezra Klein: Tuesday’s arguments seemed to focus on the question of a “limiting principle.” So is there a limiting principle here? 

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.

Judge Lawrence Silberman's opinion for the D.C. Circuit Court of Appeals. http://thinkprogress.org/wp-content/uploads/2011/11/DC-aca-opinion.pdf.

Judge Jeffrey Sutton's opinion for the Sixth Circuit Court of Appeals. http://www.ca6.uscourts.gov/opinions.pdf/11a0168p-06.pdf

Chris Hayes from The Nation, sitting in for Rachel Maddow on Thursday's program, did this segment on the politicization of SCOTUS by its conservative activist Justices, with an interview of Walter Dellinger, former acting Solicitor General under President Clinton.

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