From the WSJ today (requires subscription):
By JAMES TARANTO
We were half-joking yesterday when we asked if Barack Obama slept through his Harvard Law class on Marbury v. Madison, the 1803 case in which the U.S. Supreme Court first asserted its power to strike down unconstitutional laws. It turns out it’s no joke: The president is stunningly ignorant about constitutional law.
At an appearance this afternoon, a reporter asked Obama a question following up on yesterday’s comments: “Mr. President, you said yesterday that it would be ‘unprecedented’ for a Supreme Court to overturn laws passed by an elected Congress. But that is exactly what the court’s done during its entire existence. If the court were to overturn the individual mandate, what would you do, or propose to do, for the 30 million people who wouldn’t have health care after that ruling?”
Obama’s answer to the question was that he expects to win in court, and “as a consequence, we’re not spending a whole bunch of time planning for contingencies.” He went on to talk at some length about the “human element”–that is, people who would supposedly suffer in the absence of ObamaCare. Message: Obama cares, though not enough to spend “a whole bunch of time planning for contingencies.”
But the most interesting part of his answer was the beginning, in which he tried to walk back, or at least clarify, his statement from yesterday. He spoke slowly, with long pauses, giving the sense that he was speaking with great thought and precision: “Well, first of all, let me be very specific. Um [pause], we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner,right? So we’re going back to the ’30s, pre-New Deal.”
In fact, Lochner–about which more in a moment–was decided in 1905. 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 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.
It’s appalling that any president would have the effrontery to lecture the Supreme Court about a pending case. It’s astounding that this president, who was once a professor of constitutional law at an elite university, would do so in such an ignorant fashion.