Can you create commerce in order to regulate it?

Richard Epstein has a noteworthy column out today examining Justice Kennedy's million-dollar question:

The entire landscape of Congress’s constitutional powers changed on March 27, 2012, when, very early in the argument over the individual mandate, Justice Anthony Kennedy asked a somewhat shaken Solicitor General Donald Verrilli this simple question: “Can you create commerce in order to regulate it?”

I was as surprised by that opening gambit as everyone else. But surely not as dismayed. As three full days of oral arguments confirmed, that one question turned the constitutional showdown over Obamacare into a real horse race, with a five to four vote to strike the mandate down perhaps now the most likely outcome. The public realization, with this one question, was that the moderate Justice Kennedy, long regarded as the perennial swing vote, had bought into the argument of the opponents of the statute, chiefly crafted by Professor Randy Barnett of Georgetown University Law Center.

The individual mandate, which requires all individuals either to purchase health insurance or pay a penalty, may be struck down by the Court as unconstitutional, in isolation from the remainder of the Patient Protection and Affordable Care Act. The law’s regulation of the private health-care market, and even its extension of Medicaid may go down with it.

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