Advancing a Free Society

The ‘Commerce Clause Mandate’

Wednesday, January 18, 2012

In “Obamacare vs. The Commerce Clause,” Richard Epstein provides a devastating critique of Supreme Court commerce clause case law since the New Deal. Because it is “an indefensible line of cases,” Epstein argues “[t]he United States Supreme Court should confess error and acknowledge that its past decisions are bad both as a matter of constitutional history and constitutional theory.”

Professor Epstein is right. Despite recurrent claims by the Supreme Court that there are, in fact, limits on Congress’ commerce clause authority, the case law described by Epstein demonstrates the opposite. If the federal system conceived by the framers of the United States Constitution is to survive in anything more than name, the Supreme Court must push the restart button.

But Epstein does not think the Court will admit to three-quarters of a century of intellectual confusion, so he urges a far more modest result in the Supreme Court’s review of the constitutionality of the Patient Protection and Affordable Care Act. The Court should accept, says Epstein, “the sensible claim that commerce does not apply to transactions that people never entered into.” The Court would thus draw a line in the commerce clause sands by acknowledging the “indefensible pedigree” of Wickard v. Filburn, but would not undertake to correct for past errors.

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