Libertarian law professor Richard Epstein's latest piece is up at the Hoover Institution's Web site:
Looked at from the vantage point of the original Constitution, ObamaCare should be dead on arrival. But the New Deal transformation of long-established Commerce Clause jurisprudence has introduced a set of unprincipled (but fine-grained) distinctions that turn the law into a mass of linguistic absurdities that should lead ordinary people to question the collective sanity of the legal profession. From the straightforward prose of the Commerce Clause, Judge Silberman concludes (accurately) that "[t]oday, the only recognized limitations are that (1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible."
From this dubious premise (which has no mooring in either the text or history of the Commerce Clause), Judge Silberman's closing salvo in Seven-Sky then waxes eloquently on "the imperative that Congress be free to forge national solutions to national problems, no matter how local—or seemingly passive—their individual origins." In one well-crafted sentence, he has managed to encapsulate everything that is wrong with our modern Commerce Clause jurisprudence.
