History Un-Lochnered

I must have dreamed a thousand dreams
Been haunted by a million screams
But I can hear the marching feet
They're moving into the street
--Genesis

For someone who is purportedly a constitutional scholar, President Obama continues to demonstrate how little he seems to know about constitutional case law. Last Monday he claimed that, should the Supreme Court repeal Obamacare, that it would amount to judicial activism.

When responding to a related question at a Tuesday press conference, the president sought to clarify his statement from the day before:

"Well, first of all, let me be very specific. Um, 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 Thirties, pre-New Deal."

First, let's get the plainest of details straight. The Thirties were not pre-New Deal, Mr President. FDR's New Deal programs, which essentially built on Hoover's interventionary programs, began in 1932.

Second, Lochner was decided in 1905. The case was Lochner v. New York. The title alone tells us that this case did not involve a law passed by Congress. Lochner involved a baker who was appealing a conviction over a state statute seeking to limit workers' hours. The Supreme Court overturned the conviction, citing that the NY law violated the principle of "liberty of contract," implicit in the due process clause of the Fourteenth Amendment.

Lochner was not a Commerce Clause issue. It is telling that Mr Obama links Lochner with the Commerce Clause, however. Big Govt politicians reflexively reach for the Commerce Clause as a loophole to justify any government intervention that even remotely touches trade.

Third, the Supreme Court was still actively overturning congressional legislation related to commerce in the 1930s. In A.L.A. Schechter Poultry Corporation vs the United States (1935), affectionately known as the "sick chicken case," the Supreme Court ruled that the National Industrial Recovery Act, one of the key components of FDR's early New Deal legislation, exceeded Congress's authority under the Commerce Clause.

It was not until FDR was able to pack the court in the late 1930's that the real era of judicial activism began.

Perhaps that's when President Obama's reputed constitutional expertise kicks in as well.