A Constitutionality Argument With Teeth?


Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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6 Responses

  1. Avatar Alex Knapp says:

    So let me get this straight: Epstein believes that the court won’t uphold health care reform because of price controls? Despite the fact that federal price control legislation has been consistently upheld by the courts, even when it was across all industries?Report

  2. Avatar Art Deco says:

    Richard Epstein has been elaborating for decades on how social democratic practice violates the takings clause. Robert Bork offered many years ago that some of his points were well taken but that the arguments were not sustainable in the realms of policy he wished to take them. (It being one thing to argue that rent control, which requires the effective extension of state control over real property, is similar to the exercise of eminent domain. It being quite another to argue that payroll taxes to supply Social Security are).Report

  3. Epstein is undeniably bright (and I quite recommend his book from the 80’s on takings), but his argument here is wildly wrong. A few quick problems-
    1- he makes the assumption that all firms will be forced to enter into the exchanges (by force I mean economic rather than legislative force), which is quite silly on its face. Why would any rational, profit making enterprise enter into a new market where it was not able to maximize profit?
    2- his answer to that is government regulation and taxes of insurers outside of the exchanges will be so onerous, that firms will have no choice but to enter the exchanges. Circular? Sure. Also very weak and fairly nonsensical.
    3- in order to accept his argument one must also believe that while the health insurance market is not now competitive, simply by eliminating cross-border policies, it will magically become PERFECT COMPETITION. (I believe that eliminating said restrictions will bring me a pony.) Pay no attention to the near oligopoly that currently exists, that is solely due to said restriction, or so Epstein would have you believe. And let’s just ignore information asymmetry, too while we’re at it.

    It boggles the mind the extent to which some folks will tie themselves in intellectual knots just to promote their particular worldview.Report

  4. Avatar Scott says:

    Sadly, these days the courts will allow the gov’t to take quite a bit without compensation.Report

  5. Avatar Leviticus says:

    Epstein’s argument may not rely on the forcingof all firms to enter into the exchanges (I should grant that I’m attempting to defend an argument I haven’t read). Fore example, several provisions both in House and Senate bills would prevent the denial for coverage based off of preexisting conditions and reduce the capacity for the firms to drop policyholders. These will certainly harm the earning capabilities of at least some firms. The bill, presumably, makes no provision for compensating those firms for the losses incurred by these new regulations. This is probably closer to the argument Epstein makes. It is not that any of the potential problems associated with the respective bills are universal as has been implied, but that in those instances where regulative taking has occurred, there is not provision for the constitutionally required just compensation.Report