Flunking Constitutional Law

Last week, President Obama clumsily announced that it would be "unprecedented" for the Supreme Court to strike down "a law that was passed by a strong majority of a democratically elected Congress." This week, his words are already having an effect in the courts—but not the effect he hoped for. Yesterday, in another case challenging Obamacare, the U.S. Court of Appeals for the Fifth Circuit ordered Justice Department lawyers for a briefing on whether the Justice Department actually believes what the president said. 

We can expect the Justice Department lawyers, with the help of the White House counsel, to walk back the president's statement in a hurry. In fact, President Obama is already walking it back himself, as Steve Hayes noted last night.  

But the president's most recent "clarification" is no great improvement on last week's mistake. In his re-explanation yesterday, President Obama—a former law professor, Harvard Law Review president, and "the best student that" Harvard's Laurence Tribe "ever had"—continued to demonstrate a surprisingly poor grasp on constitutional law and Supreme Court history.  

Here is the president's new argument, as delivered yesterday to an Associated Press luncheon:

Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce—a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre-New Deal.

And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this. 

Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there. I have enormous confidence that in looking at this law, not only is it constitutional, but that the Court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has.  As a consequence, we’re not spending a whole bunch of time planning for contingencies. 

This is wrong on many levels. Let me take them one at a time:

First of all, Lochner was not the last time that the Court overturned Congress on an economic issue, because Lochner didn't involve Congress. It didn't involve any federal law. The case challenged New York laws—as evidenced by the case's name, Lochner v. New York.

Second, the Court continued to overturn federal laws well into the New Deal. The Supreme Court struck down key components of the New Deal, including the National Industrial Recovery Act, the Frazier-Lemke Farm Bankruptcy Act, and the Railroad Retirement Act. (And these decisions were not simply the work of anti-FDR reactionaries: The first two opinions were unanimous—indeed, the farm case's opinion was written by progressive icon Louis Brandeis.)