Last night, Fox News hosted what may have very well been the first conversation about how the constitutional challenges fit into the current state of law. Greta Van Susteren invited Charles Fried, the former U.S. Solicitor General under President Regan, to explain his opposition to the lawsuits. Fried did what few Fox News guests ever attempt: he used Supreme Court precedent to predict how the Court would respond to the lawsuits.
Fried was so certain that the Court would preserve the health law, he promised to eat an Australian leather hat on television if was ever overturned:
VAN SUSTEREN: You have said this lawsuit in Florida is ridiculous. Why?
FRIED: That’s correct, it is ridiculous, because, first of all they say that they are going to pass a statute which will exempt Florida citizens from the reach of the act. If the act is unconstitutional you don’t need it. And if the act is constitutional, it is useless, because we fought a civil war about that. State legislatures can’t just bow out of the constitutional federal statute. So that’s nonsense, and I think any serious person knows that.
So, the question is, is it constitutional? And it seems to me, though there are a lot of things to object in this, and I would be the first to say so, the constitution is not one of them. If you don’t like it, repeal it or amend it. But don’t ask the courts to do the job for you, because they won’t. [...]
VAN SUSTEREN: The issue that will confront the federal judge, and the Supreme Court if it goes on, is whether or not the Commerce Clause gives the federal government the power to do this….And does the constitution in your opinion, sir, enable them?
FRIED: It certainly does. The statute which I have in front of me, I bothered to read it, says that the health insurance industry is an $854 billion dollar industry. That sounds like commerce. The Supreme Court just five years ago with Justice Scalia in the majority said that it is all right under the Commerce Clause to make it illegal for California for residents in California to grow pot for their own use, because that has affect on interstate commerce. Well, if that has affect on interstate commerce, what happens in an $854 billion national industry certainly does.
VAN SUSTEREN: Is there any possibility, in your mind, or any thought that you could be wrong?
FRIED: Well, I suppose I could. But I’ll tell you what, I would be happy to come on this program and eat a hat which I bought in Australia last month made of kangaroo skin.
All of this is a major obstacle for those who argue that the mandate violates the 10th amendment. The Court has decided that the Commerce Clause grants Congress the authority to regulate economic activity among the states. And, since federal laws are supreme to the laws of the states (under the supremacy clause), states have to heed the new mandate requirements. The tenth amendment only provides that states retain powers that are not granted to Congress. (H/T: MMFA)