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Reagan Solicitor General: Health Reform Definitely Constitutional If It Included A Public Option

By Igor Volsky on February 2, 2011 at 2:20 pm

"Reagan Solicitor General: Health Reform Definitely Constitutional If It Included A Public Option"

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Rep. Anthony Weiner (D-NY) responded to Judge Roger Vinson’s ruling against the constitutionality of the Affordable Care Act by pointing out, “We know this: the public option is constitutional.” During today’s Senate Judiciary Committee hearing, former Reagan Solicitor General Charlies Fried agreed:

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.

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Fried is no fan of the public option, but still finds it “odd that this attempt to keep it in the private market is now being attacked that way.” As Austin Frakt put it, the mandate may be the price for maintaining a “private” solution to the health care crisis.

But if one were to review the arc of GOP criticisms against the law, the opposition to the individual mandate — at least from Congressional Republicans — did not develop until after the public option had been effectively taken off the table. Recall that while Sen. Orrin Hatch (R-UT) and former Senators Judd Gregg (R-NH) and Bob Bennett (R-UT) all previously supported the requirement, Sen. Chuck Grassley (R-IA) — who played a key role in the bipartisan negotiations within the so-called gang of six — favored the requirement as late as August 2009.

Before that time, the crux of the opposition focused on the public option. As it stood on its last leg in the fall of 2009, Republicans developed a new allergy to requiring people to take responsibility for their eventual health care costs. So, the GOP may have created this conundrum and now they’re making the most of it.

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