Advancing a Free Society

Liberal Judges Won’t Defect from Misinterpretation of Commerce Clause

Thursday, May 12, 2011

As Adam Freedman mentioned earlier, the Fourth Circuit heard yesterday oral arguments on the constitutionality of the Patient Protection and Affordable Care Act, aka, ObamaCare.  At one level there was no surprise in the tenor of the questions.  All three judges on the panel were appointed by Democrats,. Judge Andre M. Davis, an James A. Wynn Jr. are Obama appointees; the presiding judge Diana Gribbon Motz is a Clinton appointee.  From their relentless questioning of Mathew Staver, counsel for Liberty University, it is quite clear that no liberal judge will defect from the Administration’s position that a comprehensive system of health care regulation lies within the power of Congress to regulate under the Commerce Clause.

At this point it is useful to quote the language of the clause, so that one can see how far the current debates have strayed from the original constitutional design.  In 1787, the grant of power under Article I, section 8, cl. 3 gave Congress “the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”  That language is lost to posterity in the modern formulations of the scope of the commerce power which allow it to extend to all activities within a given state that have “substantial effect” on interstate commerce, even if not part of that commerce itself.

Continue reading Richard Epstein…

(photo credit: IXQUICK)