"It was comical to read the Heritage Foundation's brief attempting to explain why they were changing their position on this. Something needed to be done about this problem. Everyone understood that. So, the Heritage Foundation said let's do an individual mandate because it keeps it within free enterprise. The alternative was single payer. And they didn't want that, and I'm in sympathy with that."So now all of a sudden the free-market alternative becomes unconstitutional and terribly intrusive where a government imposition and government-run project would not be? I don't get it. Well, I do get it. It's politics."
When asked if the Supreme Court observers, who had initially considered the constitutional challenge to the law frivolous, had "underestimated the politicization of the Judiciary," Fried answered:
"Politics, politics, politics. You look at the wonderful decision by [federal Judge] Jeff Sutton, who is as much of a 24-karat gold conservative as anyone could be. He is a godfather to the Federalist Society. Look at his opinion [in the Sixth Circuit upholding the law]. Or look at Larry Silberman's opinion. I don't understand what's gotten into people. Well, I do I'm afraid, but it's politics, not anything else."
Fried's "politics, politics, politics" point would seem particularly clear given the fact that the individual mandate to buy insurance was first developed by Heritage and first adopted by a Republican governor (and current GOP presidential front-runner) Mitt Romney of Massachusetts as a way to prevent "free riders" from getting health care and passing the costs to others.
Indeed, President Obama embraced the mandate idea -- after opposing it during Campaign 2008 -- because he concluded that it was the only way he could hope to win the votes of some moderate Republicans and conservative Democrats. But once Obama supported the idea, Republicans denounced it as an "unconstitutional" affront.
Then, after the law's difficult enactment two years ago, the Republicans ran to the courts to get it overturned -- although conservatives have traditionally decried people who seek court intervention rather than working out policy differences through the political system.
Though serious conservatives like Silberman, Sutton and Fried judged the challenge to be without merit, it received a friendly hearing by the GOP Five on the Supreme Court. It's now expected that the GOP Five will get busy behind closed doors drafting some ruling that will insert some newly invented "rights" into the Constitution.
Despite this rather obvious politicization of the federal courts, the Washington Post's editors are more upset that "some liberals" would suggest that cynical politics is at work here. Yet, however you spin what the GOP Five is doing, it sure doesn't look like the behavior of principled "strict constructionists."
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