At SCOTUS Blog, an exchange between Richard Epstein (here) and Laurence Tribe (here) on the Affordable Care Act (ACA) and the original meaning of the commerce clause. (This exchange is part of a wide-ranging symposium on the ACA involving many contributors, much of which is doctrinal rather than originalist. The entire symposium is available here.)
Epstein says in part:
It beats me how a provision [the commerce clause] that is drafted to allow Congress the important power to deal with transportation, communication, and the shipment of goods across state lines, can be expanded to let it regulate any activity that affects commerce, even if done in a purely local setting.
That broad reading of the Commerce Clause … is flatly contradictory to the great Marshall decision in Gibbons v. Ogden (1824). Gibbons said that even though the Commerce Clause lets Congress regulate a single journey into the interior, its power to regulate stops when the goods are unloaded on the dock, where they are commingled with the mass of local goods and are subject to the general inspection laws of the state to which they are shipped. …
… [I]t is said that we need a national government to solve national problems. But we do not need a national government to distort all voluntary markets beyond recognition, which is what happens when federal monopoly power drives out competition between states, which is in fact the engine of material progress. For present-day purposes, the ideal structure is just what it was in 1787: a federal government that can keep the lines of communication open between states, after which firms in one state can compete with others.
Tribe responds on this point:
I believe that the constitutionality of challenged exercises of power should not be determined wholly by the logic of the latest judicial precedents, with scarcely a nod to the constitutional text or to the basic principles that it was originally meant to embody. To the contrary, I agree [with Professor Epstein] that the text and its original meaning in that principled sense (although not in the sense of what the Framers or Ratifiers or others specifically expected the clauses would cover) should guide – even if they cannot algorithmically determine – the interpretive process from beginning to end.
But thereafter Professor Epstein and I part ways. For I believe that he is wrong to suggest that the best reading of the Commerce Clause and of the basic principles it originally embodied is a reading that would doom the individual mandate. To the contrary, as Yale’s Jack Balkin has persuasively argued, the Commerce Clause was originally meant to confer on Congress a broad power to govern “interactions” and “transactions” involving, as Chief Justice John Marshall famously said in Gibbons v. Ogden, “more states than one” – including, by the way, the kind of interstate travel that even Professor Epstein might concede the Commerce Clause was originally meant to cover whether or not it involved “economic activity” of the sort the modern Supreme Court cases insist on finding as a predicate of applying the aggregation principle of Wickard v. Filburn. And more generally, the enumerated powers as a whole were meant to permit the federal government to address problems that states were individually incompetent to solve, a criterion plainly met by the healthcare problem this nation faced before the ACA’s passage. Thus, if anything, modern Commerce Clause doctrine is more restrictive of congressional power than the framing generation would have understood, not less.
Two quick observations. (1) It’s significant that mainstream ACA defenders like Professor Tribe don’t feel that they can simply ignore originalist arguments and say originalism is an impossible, empty or outdated approach; they feel compelled, to some extent, to meet originalists on their own ground. (2) Tribe’s essay highlights the importance of originalist arguments associated with Jack Balkin and others (see here and here) claiming a broad meaning of the commerce clause; I think we'll be hearing a lot more about those arguments, in the ACA context and elsewhere, including increasingly in political commentary.
Posted at 7:00 AM