BY JOHN FUND – Democrats on the Senate Judiciary Committee thought they’d bagged a big trophy last week by getting Charles Fried, a prominent professor at Harvard Law School and a top Justice Department official in the Reagan administration, to testify in favor of the constitutionality of ObamaCare.
But Mr. Fried turned in a mixed performance. He said he was “certain” that the law’s mandate requiring individuals to buy health insurance was within Congress’s authority. But he had doubts that the law’s provisions mandating states to dramatically increase spending on Medicaid could pass constitutional muster.
In addition, Mr. Fried’s defense of the individual mandate wasn’t particularly comforting to Americans worried about oppressive federal power. Sen. Dick Durbin, the Democratic chairman of Judiciary’s Constitution subcommittee, asked him about concerns that, if the law were upheld, the government could “require me to have a membership in a gym or eat vegetables.”
Mr. Fried replied that he thought it would be “an invasion of personal liberty” to have “forced feeding” of vegetables, but that “making you pay for them” or for a gym membership would be a perfectly acceptable under the Constitution, even if it might be bad public policy.
The professor also demonstrated just how far he has strayed from his previous reputation as a libertarian on judicial matters. He argued that regulating economic inactivity, as the health-care mandate does, is within the power of Congress. “Even if the regulation of inactivity — if that is what it is — is a novelty, its novelty does not count against it,” he said. “Many — maybe most — regulations of commerce have some aspect of novelty about them.”
Of course, there also was an element of novelty in having Ronald Reagan’s solicitor general testify on behalf of ObamaCare’s constitutionality. But the Charles Fried of today isn’t quite the man the Gipper appointed a quarter century ago. In 2008, Mr. Fried endorsed Barack Obama for president.