Conservative Split On Health Care Makes Supreme Court Dicey

Charles Fried (l), of Harvard Law School, Randy Barnett (r) of Georgetown Law School listen to Michael Carvin, partner at Jones Day. i i

Charles Fried (l), of Harvard Law School, Randy Barnett (r) of Georgetown Law School listen to Michael Carvin, partner at Jones Day. Brendan Smialowski/Getty Images hide caption

itoggle caption Brendan Smialowski/Getty Images
Charles Fried (l), of Harvard Law School, Randy Barnett (r) of Georgetown Law School listen to Michael Carvin, partner at Jones Day.

Charles Fried (l), of Harvard Law School, Randy Barnett (r) of Georgetown Law School listen to Michael Carvin, partner at Jones Day.

Brendan Smialowski/Getty Images

One reason it's impossible to know how the health care law will fare when it finally gets to the Supreme Court is because conservative legal scholars are split on the law's constitutionality.

That reality was readily apparent at Wednesday's Senate Judiciary Committee hearing on the constitutional validity of the law.

As NPR's Liz Halloran wrote in a post on our sister Shots blog, Randy Barnett, who views the Constitution through a conservative libertarian lens, argued the new law's unconstitutionality.

An excerpt from Liz's post:

The challenge to the health care law is, on its face, fairly straightforward. Georgetown law professor Randy Barnett laid it out — he's been instrumental in shaping the legal case against the measure.

The mandate requiring people to purchase insurance may be "convenient" for regulation of the national economy, Barnett said, but it is "neither necessary nor proper."

But Charles Fried, a member of the Federalist Society since its start, disagreed with Barnett, as Liz noted:

Harvard law professor Charles Fried, who served as solicitor general in the Reagan Administration and later as a Massachusetts Supreme Court justice, argued that legal precedent suggests strongly that the health care law is "consistent with the letter and spirit of the Constitution."

Fried asserted that insurance is a commerce, and Congress has a right to regulate it — including imposing a mandate. "I'm not sure it's good policy," he said, but there's "no doubt that it's constitutional."

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