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.)
Moreover, the Court continued to strike down laws "passed by Congress on an economic issue" well into modern times. In 1998, the Court struck down the Coal Industry Retiree Health Benefit Act for violating either the Fifth Amendment's Takings Clause or its Due Process Clause. In 1997, the Court struck down part of the Brady Handgun Violence Prevention Act for violating the Constitution's protection of state sovereignty. The Court has struck down myriad federal statutes regulating "economic issues," on First Amendment grounds. And so on.
Simply put, there is nothing new about the Court striking down federal statutes regulating economic matters. What President Obama probably meant to say—let's give him the benefit of the doubt—is that the Court has not recently invoked the Commerce Clause to strike down a federal law purporting to regulate something that (in Obama's words) "I think most people would clearly consider commerce"—namely, health care or health insurance.
But that argument, stripped of all the president's bluster, is just a matter of question-begging. Because even if you grant that health insurance or health care is interstate commerce, that still does not answer the question that the Court must answer in the Obamacare cases: Can Congress can go so far as to mandate that people buy health insurance?
Contrary to the president's assertion yesterday, there are no "well-established precedence [sic] out there" to guide the Court's decision, because no previous case has considered the question. The issue is without precedent.
The president may well continue to pound the table, attempting to dissuade the Court from nullifying his landmark legislative achievement. But he ought to leave the constitutional arguments to the solicitor general's office, because right now he's only vindicating the old saying: the lawyer who represents himself has a fool for a client.
Adam J. White is a lawyer in Washington, D.C.