Obama on Lochner v. New York

President Obama said the following today when asked about the constitutional litigation over the ACA:

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.

In turn, James Taranto took Obama to task for wildly misciting Lochner:

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 it 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….

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.

When a reader sent me these links, my initial inclination was to defend the president. I wrote to my correspondent, “I think Obama probably meant “Lochner” as in “the Lochner era”, or was using a shorthand, as liberals often do, of “Lochner” as the group of cases in which the Court invalidated economic regulations before the New Deal, regardless of the clause.”

But then I remembered the last time President Obama expressed his views on Lochner v. New York, when he was still a Senator from Illinois, criticizing D.C. Circuit nominee Janice Brown:

For those who pay attention to legal argument, one of the things that is most troubling is Justice Brown’s approval of the Lochner era of the Supreme Court. In the Lochner case, and in a whole series of cases prior to Lochner being overturned, the Supreme Court consistently overturned basic measures like minimum wage laws, child labor safety laws, and rights to organize, deeming those laws as somehow violating a constitutional right to private property. The basic argument in Lochner was you can’t regulate the free market because it is going to constrain people’s use of their private property. Keep in mind that that same judicial philosophy was the underpinning of Dred Scott, the ruling that overturned the Missouri Compromise and said that it was unconstitutional to forbid slavery from being imported into the free States.

That same judicial philosophy essentially stopped every effort by Franklin Delano Roosevelt to overcome the enormous distress and suffering that occurred during the Great Depression. It was ultimately overturned because Justices, such as Oliver Wendell Holmes, realized that if Supreme Court Justices can overturn any economic regulation — Social Security, minimum wage, basic zoning laws, and so forth — then they would be usurping the rights of a democratically constituted legislature. Suddenly they would be elevated to the point where they were in charge as opposed to democracy being in charge.

Back in 2011, I annotated nine separate misstatements in these two paragraphs. So maybe Taranto’s correct, and the president should stick to politicking and stay away from constitutional history. Obama could have avoided all of this by heeding my op-ed noting that Lochner has nothing to do with the health care litigation, except as crude propagandistic rhetoric [update: as in this Huff Post by Prof. Jamin Raskin, which has a breathtakingly ignorant (willful or not?) paragraph about Lochner and the liberty of contract doctrine]. (Not to suggest, of course, that I think the president reads my op-eds!)