Epstein on the Constitutionality of the Affordable Care Act

The Constitutional challenges to the PPACA: Why don’t we go back to first principles
Richard A. Epstein
August 12, 2011

I have now had the chance to read the posts (in alphabetical order) of Jonathan Adler, Elizabeth Price Foley, and Ilya Somin, each of which take the position that the unprecedented extension of federal power under the Patient Protection and Affordable Care Act  (PPACA) exposes the individual mandate under the bill to serious constitutional challenge, for exceeding the scope of federal power under the commerce power.

What is so striking about these arguments is that none of them starts with the text of the Commerce Clause itself.  Each begins with the sensible assumption that the law as stated in Wickard v. Filburn (1942) covers the case so that it becomes important to explain why a case that holds that a farmer has engaged in interstate commerce when he feeds his own grain to his own cows cannot be read to allow Congress to impose a duty on individuals to pay a fine if they do not take out health care for their own protection, under circumstances where they lose either way.  Let them take out the coverage and, given the community rating issues, they will pay more for their protection than the actuarial value of the policy.  Let them not take out coverage and they are socked with a $2,000 fine.

To my untutored mind, this damned-if-you-do-damned-if-you-don’t choice is a classic form of expropriation that differs only in inconsequential detail from a government edict to surrender either your watch or your wallet, all to the greater public good.  Yet paradoxically the takings and due process issues have just disappeared from this case without a trace, presumably because the low rational basis standard used to judge economic regulation allows Congress to do these things in the same way that Congress can do whatever it wants to redistribute wealth through general revenue  schemes in the United States.

Richard A. Epstein