Richard Epstein on health care reform, a Virginian constitutional amendment, and Obama's recess appointments

Richard Epstein, Laurence A. Tisch Professor of Law, has had a busy week. After an op-ed in the Wall Street Journal on the constitutionality of rent control, Epstein has also spoken up in the news on the 2010 federal health care overhaul, a constitutional amendment up for consideration by the Virginia General Assembly, and President Obama’s recent recess appointments.

On January 5, Epstein, along with Ilya Shapiro of the Cato Institute and Mario Loyola of the Texas Public Policy Foundation, filed an amicus brief with the Supreme Court in a case challenging the health care legislation. The brief, which addresses “whether the individual mandate of the Patient Protection and Affordable Care Act is severable from Titles I and II if that mandate is found unconstitutional,” argues that “the health-insurance reforms and subsidy provisions of Obamacare are inseparable from the unconstitutional individual mandate and should be struck down along with it.”

Over at, Epstein discussed the Supreme Court’s 2005 landmark ruling Kelo v. City of New London in relation to the Virginia General Assembly’s upcoming consideration of a constitutional amendment which would allow the government to use eminent domain to transfer private property from one private owner to another for a public purpose. Once the Kelo decision came down, Epstein told’s Richard Sincere, “it raised the political cost to anybody who now wants to engage in taking of private property, particularly if it turns out to be a residential home.”

Meanwhile, on MSNBC, Epstein weighed in on President Obama’s recess appointments. "For the president to say that the Senate is not in session when the Senate says that it is, introduces a set of constitutional confrontations that we would be far better off doing without," he said.

Posted January 9, 2012