Epstein on Affordable Care Act and the Commerce Clause

No limits
Richard A. Epstein
Chicago Tribune
December 19, 2010

Last week, U.S. District Judge Henry Hudson launched a miniconstitutional revolution by using the commerce clause of the U.S. Constitution to strike the individual health care mandate, which everyone regards as the capstone of the Affordable Care Act, aka ObamaCare. That mandate requires individuals who do not buy their own health care insurance to pay $2,000 for the privilege of remaining uninsured.

For those not steeped in constitutional history, the entire constitutional debate is surreal. The commerce clause states the "Congress shall have the power to regulate commerce with foreign nations, among the several states and with the Indian tribes." To the uninitiated this looks as though Congress could regulate at most an interstate railroad trip or telephone conversation with someone in Canada. Any regulation of health care would be off limits to the federal government, period.

During the New Deal, that narrow view of the commerce clause gave way. Today's received wisdom lets Congress regulate any economic activity in one state if it "affects" economic activity in another, as it always does. The Congress that can literally regulate the home consumption of wheat can surely regulate every aspect of our far-flung health care system.

Or maybe not. For Judge Hudson, the soft underbelly of the government's position lies in the innocent word "activity." Forcing people into an "involuntary" purchase of health care insurance is like dragooning them to work on government ships. The federal government may regulate those who choose to sail, but it cannot turn us all into sailors.

Faculty: 
Richard A. Epstein