United Liberty

For someone that was a “constitutional law professor,” President Barack Obama doesn’t seem to have a very good grasp of constitutional law. While appearing yesterday before a group of newspaper executives, Obama once again launched a preemptive attack on the Supreme Court over the Patient Protection and Affordable Care Act — also known as ObamaCare:

President Obama elaborated on his claim that a Supreme Court ruling against Obamacare would be “unprecedented,” as he suggested today that the court does not take its responsibilities “seriously” if they do.

“We have not seen a court overturn a law that was passed by Congress, on a economic issue, like healthcare — like I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner [vs New York, 1905],” Obama told reporters during the question-and-answer session of the Associated Press luncheon.

Of course members of the Supreme Court take the task given to them seriously, even if we don’t always agree with their conclusions on issues that come before them. They play an important role in our system of checks-and-balances — striking down several dozen acts of Congress from 1981 to 2005. Thi is a role that some on the Left have apparently forgotten, including Obama himself.

There is more than one issue with the whining that Obama has done over the last couple of days, but let’s look directly at what he said yesterday. President Obama says that the Supreme Court hasn’t struck down a law dealing with commerce since Lochner — more than a century ago. That’s not true. As James Taranto notes, the Supreme Court struck down the National Industrial Recovery Act (NIRA) in 1935 because of the expansive view of the Commerce Clause being taken at the time by FDR’s administration and also points out that Lochner had nothing to do with federal regulations:

Thirty years later, after the New Deal had begun, the high court unanimously struck down one of its main components, the National Industrial Recovery Act, as exceeding Congress’s authority under the Interstate Commerce Clause. The case was A.L.A. Schechter Poultry Corp. v. U.S. (1935).

It is true that in subsequent New Deal cases, the court vastly expanded Congress’s power to regulate “interstate commerce,” although it has never done what the administration asks it to do now, namely authorize Congress to force individuals to engage in commerce. Obama seems to have been trying to make the accurate observation that since the ’30s the court has not struck down a federal law that applies to economic activity on the ground that it exceeds Congress’s Commerce Clause authority.

But in citing Lochner, the president showed himself to be in over his head.

The full name of the case, Lochner v. New York, should be a sufficient tip-off. In Lochner the court invalidated a state labor regulation on the ground that it violated the “liberty of contract,” which the court held was an aspect of liberty protected by the 14th Amendment’s Due Process Clause. (The legal doctrine at issue, “substantive due process,” refers to the meaning of “life, liberty and property” under the Due Process Clause.)

Lochner, which was effectively reversed in a series of post-New Deal decisions, did not involve a federal law—contrary to the president’s claim—and thus had nothing to do with the Commerce Clause, which concerns only the powers of Congress.

And while Obama admits now that he has to respect whatever decision the Supreme Court makes, he had seemed to have completely forgotten the concept of “judicial review,” which was established long ago in Marbury v. Madison (1803).

But perhaps the most concerning part of what Obama has done the last few days is undermining the Supreme Court, which even some liberals are concerned with, including Ruth Marcus, who supports the individual mandate and whose husband is an appointee of the president:

There was something rather unsettling in President Obama’s preemptive strike on the Supreme Court at Monday’s news conference.

“I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench is judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law,” Obama said. “Well, here’s a good example. And I’m pretty confident that this court will recognize that, and not take that step.”
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[T]he president went too far in asserting that it “would be an unprecedented, extraordinary step” for the court to overturn “a law that was passed by a strong majority of a democratically elected Congress.”  That’s what courts have done since Marbury v. Madison. The size of the congressional majority is of no constitutional significance. We give the ultimate authority to decide constitutional questions to “a group of unelected people” precisely to insulate them from public opinion.

I would lament a ruling striking down the individual mandate, but I would not denounce it as conservative justices run amok.  Listening to the arguments and reading the transcript, the justices struck me as a group wrestling with a legitimate, even difficult, constitutional question.  For the president to imply that the only explanation for a constitutional conclusion contrary to his own would be out-of-control conservative justices does the court a disservice.

Worse, the president’s critique, and in particular the reference to “unelected” judges, buys into an unfortunate and largely unwarranted conservative critique of judicial power. We want our judges unelected.  We want them to have the final constitutional say. The president should be arguing for a second term to prevent the court from tipping in an even more conservative direction, not channeling tired critiques from the right about activist judges legislating from the bench.

It’s a sad route that Obama has taken to try to undermine the Supreme Court before they’ve formally reached a decision. It does little more than rally his base and serve as a relatively weak attempt to pressure Justices to not question his administration or Congress.