Attack of the Commerce Clause

On the afternoon of Jan. 31, Richard A. Epstein was in his office at New York University Law School when a request came in from a conservative website called Ricochet.com. A federal district court judge in Florida had just struck down the Obama Administration's health-care overhaul, and the site wanted Epstein's reaction. Judge Roger Vinson had ruled that in passing the bill last year, Congress exceeded the authority granted it by the so-called Commerce Clause: Article I, Section 8, Clause 3 of the U.S. Constitution, which allows lawmakers "to regulate Commerce … among the several states." For Epstein, 67, a voluble and prolific scholar who for four decades has been arming conservatives with intellectual weaponry to attack regulation, it was an I-told-you-so moment. "The Commerce Clause challenge to Obamacare indeed has legs," he blogged. "The government played table stakes poker, and for the moment it has lost."

A central figure at the University of Chicago until he moved to NYU last year, Epstein has written over the years about a dizzying array of legal issues: zoning, banking, and job discrimination; product liability, patents, and pharmaceuticals; the environment, workers' comp, and taxation. Unifying his scholarship is a persistent theme: Government stifles capitalist ingenuity and generally screws things up. "It's amazingly consistent that way," he says amiably, ringed by a mountain range of papers in his Greenwich Village office.