Tuesday, April 03, 2012

The Constitution vs ObamaCare

Hoover Institution scholar and NYU Law Professor Richard Epstein has an interesting article on the history of the Commerce Clause which may not please some faction in the ObamaCare debate:
Before those revolutionary decisions, Supreme Court doctrine was faithful to the text and purpose of the Commerce Clause when it divided commerce into three parts. There was local commerce that led up to interstate commerce; there was commerce among the several states during any journey that crossed state lines; and there was local commerce once the interstate portion of the journey was over. In other words, Congress could not regulate the local taxi or bus service that takes people to the train station or airport for an interstate trip. It could regulate that trip, but it could not regulate the continuation of the journey once the train or plane reached its destination. By that test, the role of Obamacare in the national market would be to supply medical service for people struck ill in interstate journeys.

Thus it is no surprise that in Gibbons, Chief Justice Marshall wrote without embarrassment that “the completely interior traffic of a State” was beyond the power of commerce to regulate. A fortiori, the regulation of manufacture, agriculture, mining, or health care was far outside the scope of Congressional regulation. The great virtue of this system is that it set states in competition with each other in ways that increase the overall level of economic production.
How many Justices will support the Constitution?

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