Monday, December 13, 2010

Richard Epstein: ObamaCare Is Now On The Ropes

Richard Epstein is a Constitutional law professor with a "libertarian" point of view. In his article, he discusses the legal arguments set forth by the State of Virginia and the basis for the judge's decision.

I guess we have to wait for Justice Kennedy's vote before anyone can breath a sigh of relief. As these things go, it will probably take a couple of years before the Supremes rule.

The decision of Judge Henry Hudson in Virginia v. Sebelius is no bird of passage that will easily be pushed aside as the case winds its way up to its inevitable disposition in the United States Supreme Court. The United States gave the case its best shot, and it is not likely that it will come up with a new set of arguments that will strengthen its hand in subsequent litigation.

The key successful move for Virginia was that it found a way to sidestep the well known 1942 decision of the Supreme Court in Wickard v. Filburn, which held in effect that the power to regulate commerce among the several states extended to decisions of farmers to feed their own grain to their own cows. Wickard does not pass the laugh test if the issue is whether it bears any fidelity to the original constitutional design. It was put into place for the rather ignoble purpose of making sure that the federally sponsored cartel arrangements for agriculture could be properly administered.

At this point, no District Court judge dare turn his back on the ignoble and unprincipled decision in Wickard. But Virginia did not ask for radical therapy. It rather insisted that “all” Wickard stands for is the proposition that if a farmer decides to grow wheat, he cannot feed it to his own cows if a law of Congress says otherwise. It does not say that the farmer must grow wheat in order that the federal government will have something to regulate.

It is just that line that controls this case.

The government finds itself here in a real pickle. Virginia has drawn a clear line that accounts for all the existing cases, so that no precedent has to be overruled to strike down this legislation. On the other hand, to uphold it invites the government to force me to buy everything from exercise machines to bicycles, because there is always some good that the coercive use of state authority can advance. The ironic point is that this is not a commerce clause argument as such, for in my view any state statute would be subject to the same objection even though the state has plenary police powers.

So how does it stand? If you know which way Justice Kennedy will vote, you have a pretty good shot of getting the final outcome. But if one plays the odds, this is a 12 round fight. As of today, ObamaCare is losing on rounds.

Read full Epstein here.

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