One of the heroes of the fight to save the Affordable Care Act from conservatives on the Supreme Court was Charles Fried, a former Massachusetts Supreme Judicial Court justice and former Solicitor General of the United States under President Reagan. Fried did not simply condemn the legal attacks on health reform in the strongest possible terms, he was one of the few prominent Republicans who filed a brief defending the law in the Supreme Court.
In a brief post on SCOTUSBlog yesterday, the former Reagan official had harsh words for Chief Justice Roberts’ decision to include several gratuitous sops to the Tea Party in his opinion before eventually concluding that the Affordable Care Act is largely constitutional:
The fact is that not since 1937 has the Court turned down the use of the Commerce Clause as a basis for Congressional intervention in a major national economic concern — which of course neither the Gun-Free School Zones Act nor the Violence Against Women Act were. Activity/inactivity is a new basis for limitation and has no anchor in our jurisprudence. That is why Roberts’s opinion was not conservative but radical. I have my doubts about the political and economic virtues of the ACA, but am appalled at this radically reactionary new doctrine.
Fried’s reaction to this law is exactly the right response from a conservative who objects to it. Conservatives have every right to oppose the Affordable Care Act. They likewise are free to vote in November for candidates who object to the law — but the remedy for Americans who simply disagree with a law is elections and not lawsuits which have no basis in the Constitution or longstanding precedents.