Richard Epstein

Observations on ObamaCare

There are a number of constitutional and logical slips in the seductive argument that Paul Krugman puts forward in favor of the constitutionality of the individual mandate.  First, the question why any form of health insurance involves a question of “interstate commerce” at all.  Under the current elastic and indefensible definitions of interstate commerce, any form of local activity that influences the quantity and price of goods in interstate commerce becomes itself a form of interstate commerce, at which point there is precious little that lies outside that domain.

Note the potential reach of this argument  by the standard definition that Krugman embraces, getting sick and buying insurance influences the ability of the United States to deal with foreign nations, so that Congress can presumably regulate it as a form of commerce with foreign nations.  More impressively, since the health of their populations influences health in this country, why not say that the Constitution gives the Congress the power to expand the health care benefits that Canada, Great Britain and the rest of the world supplies to their own population.  It is a form of constitutional newspeak to treat all these local activities as though they were commerce among the several states, when they are, most emphatically anything but.

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