By now everyone knows that the Supreme Court will take up the watershed case of this century, when it examines the constitutionality of the Patient Protection and Affordable Care Act—the ACA or ObamaCare to both the friends and enemies of the Act. I have coauthored with Mario Loyola of the Texas Public Policy Foundation a brief that sets out our case against the constitutionality of the Act.  I have also written elsewhere about the complex historical evolution of the commerce clause.

I am relieved to learn, after all, that the case against the individual mandate is so trivial that three eminent legal authorities, Jeffrey Toobin, Linda Greenhouse and Dahlia Lithwick, found it easy to put me out of my intellectual misery by announcing that the act is manifestly constitutional on the indubitable authority of Wickard v. Filburn, which in their view has become the constitutional pillar of a boundless federal power.  Indeed, their collective wisdom is such that the case for the constitutionality of ObamaCare is so self-evident that only dark political motives can account for the willingness to overturn a statute whose impeccable social credentials make it the culmination of a long overdue reform movement.

Let me confess to be one of the unpersuadables.  There is of course a powerful correlation between those who praise ObamaCare and embrace its constitutionality.  There is none of the typical posturing which says that we’ll leave it to Congress to deal with the wisdom of the laws while we merely determine their constitutionality.  However on this question, turnabout is fair play, for we should look at the wisdom of statutes, or their lack thereof,  in order to orient ourselves with respect to their constitutionality.

Start with Wickard, which in soothing terms had as its objective the “stabilization” of agricultural markets under the Agricultural Adjustment Acts, by allowing the government to even out prices during good times and bad.  All that is a polite way of saying that the government should get into the business of organizing agricultural cartels, which can then reduce output by burning excess crops or forcing land to remain idle in order to reduce supply. At the other end of these cartels lie consumers, who suffer manifestly from the high prices and reduced supply that made it all the harder for them to weather the 1930s depression.  Roscoe Filburn was a cartel-breaker because he sought to escape the regulation and increase supply by feeding his own grain to his own cows.

Continue reading Richard Epstein…

This week, the United States Supreme Court has on its plate the defining legal issue of our time—the constitutionality of the Patient Protection and Affordable Care Act (ACA), which I have already commented on from a doctrinal and historical perspective. In this column, I will show how fatal defects in Obamacare’s structure undermine the constitutional case for key provisions found in Title I of the law (“Quality, Affordable Health Care for All Americans”), which regulates the private insurance market.

For openers, the ACA is subject to the law of unintended consequences. The law may proclaim that it protects patients when it in fact it restricts the health-care options of those it’s intended to protect. The ACA says that it will increase access to affordable care when in fact its endless mandates will drive up the cost of care. The false advertising of the ACA’s title conceals a wealth of difficulties with its internal design, which make its scheme unsustainable in the long run.

One unfortunate byproduct of the obsessive emphasis on the individual mandate—the requirement to have health-care insurance or pay a fine—is that it diverts attention away from the many other unsound provisions of the law. The Supreme Court need not fear that striking down Title I of the ACA will deny Americans needed health care. Rather, its implementation will have that effect.

Continue reading Richard Epstein…

(photo credit: TexasGOPVote.com)

For decades American politics has been poisoned by the great abortion debate. Never mind that the economy is in the dumps, the national debt is spiraling out of control, the nation’s infrastructure is crumbling, health-care costs are rising (even faster with the onset of Obamacare), and each year our kids learn a little less than they did the year before. So candidates for public office better know where they stand on abortion, because they will be asked again and again. And they better not flip-flop on the issue.

Now, lo and behold, contraception has yet again surfaced as the social policy issue of the day. So, candidates for President of the United States better know where they stand. Making contraception center-most in the campaign for president in 2012 is like making a black-and-white, silent movie in the twenty-first century: Who would guess that it would win the Oscar for best picture? And who would guess that forty-seven years after Griswold v. Connecticut, contraception would make a return to the silver screen of national politics.

Before candidate Rick Santorum resurrected the long moribund topic of the acceptability of contraception, the question du jour was whether the Obama administration’s newly promulgated rule on the provision of contraception services violates religious freedom or supports the freedom of women to control their reproductive lives. Now the question is whether the government has a role in regulating contraception. The response to that question should be: “You’ve got to be kidding! Of course there is no role for government.” But given that the question is now on the front page of every paper in the land, perhaps we can make some lemonade from this lemon.

Continue reading James Huffman…

There are many horrible features about the President’s birth control mandate, with respect to religious institutions.  The Catholic Church, rightly in my view, regards this federal imposition as a mortal threat of its right to follow Church teachings on core issues of belief, which seems to be an interference with the guarantee that the Congress will do nothing to prohibit the “free exercise” of religion.

To that claim, there are several replies.  The first is that the operation of medical facilities in accordance with Church teachings is not the exercise of religion, which only encompasses matters of worship and ritual.  That view is hopelessly narrow, given that the exercise of religion has to do with the way in which religious institutions interact in the world.  Indeed the recent Supreme Court decision Hosanna-Tabor Evangelical Lutheran Church v. EEOC makes clear that the choice of teachers for religious education fall within that core.  The issues of abortion, contraception, and sterilization get far closer to the core.

It has been often been stated that even if these activities are covered, the Constitution does not protect their exercise when they are limited by a neutral law passed for nonreligious purposes that impacts religious and nonreligious institutions alike.  The position of neutrality is taken inUnemployment Division v. Smith, a decision written by Justice Scalia.  That decision does cut against the claim of religious liberty because it indicates that the size of the burden of religious choice has nothing to do with the free exercise claim.

Continue reading Richard Epstein…

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.

Continue reading James Huffman…