Yes, Obama's Comments on the Court Made Sense

by Jonathan Cohn | April 10, 2012

President Obama caused quite a stir last week with a pair of comments he made about the Supreme Court. Some critics said he was citing constitutional law incorrectly. Others said he was trying to intimidate the justices. Some said he was doing both things.

The intimidation charge was just silly. Obama told reporters he was “confident” the Supreme Court would uphold the Affordable Care Act. That’s the sort of thing politicians say all the time. Intimidating the court would have been threatening to disregard it, as President Andrew Jackson is said to have done in 1832—or, perhaps, hauling the justices before congressional committees, as President-wannabe Newt Gingrich promised to do just a few months ago. At most, Obama was warning that he took the case seriously and was prepared to criticize the court, loudly, if it ruled the law unconstitutional. Surely that's within acceptable bounds of presidential behavior.

As for the accuracy of Obama’s claim, the critics have a point, albeit a small one: The president got a few facts wrong with the first of his two statements. Obama said a decision invalidating a duly passed law would be “unprecedented,” when, in fact, the Court has invalidated duly passed laws, from both Congress and state legislatures, throughout its history. This particular group of justices did it less than two years ago, via the infamous Citizens United decision striking down parts of the McCain-Feingold campaign finance law.

I assume that Obama, a graduate of Harvard Law School, is aware of these facts. But if you are one of those people convinced Obama is really a dullard who can’t get by without his teleprompter, then go wild. This is your moment. 

What’s more important, for the rest of us, is that Obama corrected and clarified the misstatement one day later. Striking down this sort of economic legislation, Obama said, would be unprecedented in the modern era—and reminiscent of the early 20th Century, when the Court threw out multiple pieces of economic regulations from the Progressive Era and then the New Deal. Here's how Obama put it, word for word:

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.

This claim has also drawn criticism from the right. But it is totally defensible.

I've tried to make the case previously for why a decision striking down even part of the Affordable Care Act would be so brazen and unjustified (and quite unlike more defensible instances of judicial activism, such as Brown v. Board of Education): It'd be a five-to-four vote, along party lines, overturning a sweeping legislative initiative on what would be, at best, shaky constitutional arguments. That hasn't happened since those early New Deal cases, just as Obama suggested.

But let's look more closely at that reference to Lochner, which has been a subject of particular controversy. Lochner refers to Lochner v. New York, a 1905 decision in which the Supreme Court struck down a law establishing working conditions for the employees of bakeries. In that case, a five-justice majority reasoned, in effect, that the Fourteenth Amendment's guarantee of "substantive due process" included the freedom to make private economic decisions without government interference.

By passing a law regulating contracts between employers and employees, the justices said, the federal government had violated the terms of that guarantee. That kind of laissez-faire logic prevailed on the Court until the 1930s, when the justices recognized states sometimes needed to interfere with private economic decisions in order to promote the health and well-being of its citizens. (If memory serves, the first such case involved a minimum wage law in the state of Washington.) 

To some conservatives, comparing Lochner to a possible decision invalidating the Affordable Care Act makes no sense, because Lochner was about state regulation and the heath care case is about federal regulation. Among those mocking Obama for this comparison was James Taranto, of the Wall Street Journal:

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

But Obama's invocation of Lochner here was neither ignorant nor particularly unusual. As Taranto surely knows, historians routinely use “Lochner” as a generic description for those early 20th Century rulings, when the justices were striking down all of those economic regulations. 

In some of those cases, yes, the justices were focusing on the Fourteenth Amendment's protection of economic liberty from interference by state governments. But in other cases, the justices threw out economic legislation because they had embraced a particularly narrow view of the federal government’s power to regulate interstate commerce. Among the most famous of these cases was the one that Andrew Koppelman, the Northwestern Law Professor, described at TNR last week: Bailey v. Drexel Furniture Company, a 1922 decision in which the Court invalidated a federal law outlawing child labor. As Koppelman noted, that case had striking parallels to the case of the Affordable Care Act.

The Supreme Court eventually repudiated the logic in Drexel Furniture, much as it did the logic of Lochner. Partly, the justices were reacting to popular sentiment (and, in some tellings, President Franklin Roosevelt's threats to pack the court with more sympathetic justices.) But partly they were recognizing that the country really had changed: In the contemporary, integrated economy, government in general and the federal government in particular needed more regulatory authority in order to keep capitalism functioning and to protect citizens from harm. 

Although at least some libertarians openly wish for a return to Lochner-era notions of economic liberty, many (and probably most) historians look back on the Lochner decisions as a blemish on the Court’s history, albeit for different reasons. That’s one reason why conservatives are so sensitive to Lochner references: Nobody wants that label. In fact, when a government lawyer raised the specter of Lochner during oral arguments over the health care law two weeks ago, Chief Justice John Roberts sternly made the very same point Taranto did: Lochner was about state regulation, not federal regulation. 

But I'm pretty sure both Obama and his administration's lawyer were saying something different, and broader, when they invoked Lochner: By invalidating the Affordable Care Act, the Supreme Court would be resurrecting a vision of constitutionally limited government that, quite rightly, went out of fashion a long time ago. 

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Update: I reworded a few passages of the (hastily written) original shortly after posting, to better capture some nuance and, more generally, to clarify what I had meant to say in the first place. I also made clear that while Obama was not intimidating the court, he was laying the groundwork for criticizing it, which seems totally fair game. For more on Lochner's relevance to the case against the Affordable Care Act, see this article.

Update 2: David Bernstein, of the Volokh Conspiracy, corrects some of my history and points to several New Deal cases that were decided by larger than five-to-four margins. He's correct. But, as he also acknowledges, that actually strengthens my case that overturning major legislation with such a narrow margin would be an unusually aggressive step by the Supreme Court. He suggests, later, that a five-to-four decision invalidating the mandate would be appropriate because the law enacting it, the Affordable Care Act, also passed on a party-line vote. I disagree. This is a longer discussion but, in a nutshell, the Court has an obligation here than the Congress does not: Judicial review is a tool to be used sparingly and with some humility, quite unlike the process of legislating. Laws are presumed to be constitutional unless proven otherwise. For reasons I've discussed here, among other places, I don't think the case against the health care law meets that threshold.

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