A Constitutionality Argument With Teeth?
Richard Epstein, a far greater legal mind than I, takes a dramatically different approach to the issue of whether the proposed Senate health care reform bill is constitutional. Rather than focusing on the interstate commerce clause, Congress’ power to tax, and the individual mandate (which I think is a weak argument in light of existing precedent), Epstein looks at the ways in which the bill will affect small-group and individual market insurance companies. In essence, Epstein argues that the bill will work an unconstitutional taking under the Fifth Amendment on these companies. It’s an interesting argument that will require awhile for me to evaluate properly, but it’s well worth taking a look at.