Richard Epstein’s Overdetermined Critique of the Roberts Ruling

Richard Epstein offers an interesting critique–based on the alleged inseparability of the power to regulate commerce and the power to tax–of John Roberts’ ruling in the ACA case. If it’s not an activity the government can regulate, then it’s not something the government can tax either. Thus, Justice Roberts should have struck down the individual mandate:

As a matter of constitutional text, legal history and logic, the power to regulate commerce and the power to tax should not be separated. It is not good for the court or the country that the chief justice’s position in such an important case is confused at its core.

Epstein finds ample precedent for his understanding of the inseparability of the power to regulate and the power to tax:

In the Child Labor Tax case of 1922, the Supreme Court refused to uphold a tax equal to 10 percent of the net profits of any firm that shipped goods into interstate commerce if the firm used child labor anywhere in its plants. Chief Justice William Howard Taft noted that…Hammer v. Dagenhart (1918) forbade Congress to use its commerce power to prohibit outright the shipment of ordinary goods across state lines because they were made in factories that used child labor. A heavy tax…could not be used to mount an end run around this constitutional obstacle to its own power.

The same point was reinforced in 1936 in United States v. Butler, which struck down a tax on agricultural commodities because it sought to achieve the then unconstitutional regulatory aim of reducing the total acreage in agricultural production. After the 1942 case Wickard v. Filburn, when the Commerce Clause was held to permit such regulation, the tax became just as permissible as direct regulation. Wickard expanded the scope of federal power, but it did nothing to upset the constitutional parity between the taxing and commerce powers.

So Epstein only needs the inseparability doctrine for his argument to work. For having found the activity in question–non-participation in the healthcare market–was not something the government could regulate via the Commerce clause, then it failed to be an activity the government could tax either.

But Epstein seems to also think that the tax argument fails on its own merits. For he offers us an ‘originalist’ reading of the relevant Constitutional clause:

By giving Congress independent powers over taxation and other revenue sources, the Constitution ended that dependency. But as a quid pro quo, the Constitution also restricted the use of these revenues to classical public goods — benefits that must be given to all citizens, if given to any — like paying off national debts and paying for the nation’s defense. General welfare, mentioned in parallel with these two phrases, is best read as covering only matters that advance the welfare of the United States as a whole. The redistribution of income, or “transfer payments” among citizens, like those mandated under the Affordable Care Act, doesn’t qualify for taxation in this originalist reading of the Constitution.

This is a curious business now. Remember, this supposedly optimal reading is not required for Epstein’s argument to work. It does however, let him deploy some additional ideological machinery.  It suggests that ‘healthcare’ is not a ‘classical public good’ like the payment of national debts or the budgetary requirements of national defense.  It suggests that ‘healthcare’ cannot thus, be understood as ‘general welfare,’ which rather is to be understood in more abstract terms as that which might benefit the nation–but presumably, not its people–‘as a whole.’ (Note that provisions for healthcare are defined as ‘redistribution of income’–the horror!)

The real problem, it emerges, is not the separation of the powers to regulate and tax for which, in fact, there is a great deal of precedent; witness, for instance, the greater reliance on taxation, as opposed to direct regulation, of alcohol and tobacco consumption. The substantive issue for Epstein is that Roberts has suggested that ‘healthcare’ might have something to do with ‘public goods,’ with ‘general welfare.’ In short, it might be a business that government could concern itself with.

One thought on “Richard Epstein’s Overdetermined Critique of the Roberts Ruling

  1. It seems to me that he is saying that healthcare is not a classic public good as defined by the constitution. A public good is one that has to benefit all, in his interpretation of the constitution. Redistribution of income does not, in my mind, benefit all, it benefits some, (those who always seem to want more and think that they deserve more,) at the expense of others. For simplicity purposes, let’s refer to them as the “makers” and the “takers.”

    In your examples of alcohol and tobacco, that’s different, and works under the commerce clause, since one is only taxed if they choose to purchase it.

    You are right, it does boil down to one’s interpretation of what a “public good” is. The takers always think that getting more of someone else’s money is good for everyone. Of course they do. They are the takers, not the makers.

    But as you take more from the makers, there are less makers. We’ve seen it countless times. England, prior to Margaret Thatcher. Watch what happens in France, under Hollande. Cameron has already said that he’s rolling out the red carpet, and French Socialists are wringing their hands about the wealthy leaving, saying that it’s “unpatriotic.” Call it what you like, just make sure that you shout it out before they leave, and leave they will.

    France will be a very interesting story. The United States is not France. Yet. But we are headed that way. I don’t begrudge takers to want more, but don’t be surprised when the makers get tired of it.

    This is a simple lesson that I teach my children in “The Little Red Hen.”

    We need more makers.

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