"Conservative commentators." "Commerce." "New Deal." Only if you pretend Barack Obama never uttered those three phases this week can you manufacture a controversy in which the President supposedly questioned the authority of the Supreme Court to overturn the 2010 Affordable Care Act (ACA). But in the hands of his Republican opponents and a lazy and compliant media, President Obama's unremarkable summary of 70 years of Supreme Court Commerce Clause jurisprudence and the decades-long conservative assault on so-called "judicial activism" magically made him a "thug" trying to "intimidate the Supreme Court."
The non-controversy started on Monday. During a joint press conference with visiting leaders from Canada and Mexico, President Obama express confidence (as anyone in his shoes naturally would) that the Supreme Court would uphold his signature health care reform law. Just as important, Obama made the point of reminding Americans that the Court's failure to do so would look an awful lot like the kind of "judicial activism" conservatives claim to decry:
Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint -- that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this Court will recognize that and not take that step. [Emphasis mine.]And on Tuesday, President Obama clarified exactly what he meant by an "unprecedented, extraordinary step." He obviously wasn't calling into question the Supreme Court's power of judicial review, but instead was merely highlighting the 70 years of history during which the Court has not overturned Congressional laws aimed at regulating national economic activity:
Let me be very specific. We have not seen a Court overturn a law that was passed by Congress on an 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 his speech to the Associated Press, the President was putting a spotlight on a much bigger issue than the constitutionality of the ACA. While the Supreme Court did indeed strike down labor laws in the infamous 1905 case of Lochner v. New York and nullify early New Deal legislation in Schechter and other rulings, beginning in 1937 the Court showed tremendous deference to Congress acting under its Commerce Clause power. (The Court's 1996 ruling barring federal regulation of guns near local schools may have been an exception, but it only served to highlight the national scope of Congress' commerce power.) The growing pressure from FDR and the public alike produced the "switch in time that saved nine," as well as programs like Social Security. As Jeffrey Rosen put it in 2005:
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. [Emphasis mine.]
Today, the conventional wisdom among liberal and conservative legal thinkers alike is that Lochner was decided incorrectly and that the court's embrace of judicial restraint on economic matters in 1937 was a triumph for democracy.But in recent years, as Rosen explained at length in the New York Times and the New Republic, a group of right-wing academics and judges has been trying to roll three generations of Supreme Court precedent under the rubric of the "Constitution in Exile." Led by figures like Richard Epstein (the same Richard Epstein who provided the impetus for challenging the Affordable Care Act), the Constitution in Exile crowd also includes judges like Samuel Alito, Michael McConnell, Edith Brown Clement and other conservative jurists chosen or considered by President Bush for the federal bench. Their mission, as Rosen summed it up:
The activists want to resurrect what they call the "Constitution in Exile," enforcing limits on federal power, that have been dormant since the New Deal, in part through narrow interpretation of the interstate commerce clause.If they succeed, the entire edifice of the federal social safety net, workplace safety requirements, labor regulations and environmental protections could be called into question. The end of Obamacare would mark the beginning of the end of so much more.
All in all, President Obama's point this week that the Supreme Court since the New Deal has almost always upheld laws of Congress exercised in support of its commerce power happens to be both true and commonplace. Nevertheless, mainstream press, Republican politicians and right-wing pundits (and some liberal ones, too) called the Obama's comments "unsettling", "intimidation" and rhetoric that has gone "too far." (Politifact called Obama's remarks on Monday "false.") Echoing Fifth Circuit Court of Appeals Republican Judge Jerry Smith, Charles Krauthammer on Friday pretended President Obama was calling into question the Court's power of judicial review dating back to Marbury v. Madison over two centuries ago. For his part, Senate Minority Leader Mitch McConnell warned Thursday:
"The American people should be able to expect that their president will defend the independence of the court, not undermine it, safeguarding and strengthening our country's institutions, not actively weakening them."Of course, during the Terri Schiavo affair in 2005, McConnell was among the leaders of the Republican effort to undo 19 court rulings at all levels of the Florida and federal judiciary. (It was that same episode which produced none-too-thinly veiled threats of violence towards judges from the likes of Tom Delay and Texas Senator John Cornyn.) For years (and even in recent weeks), Republican leaders have decried the very judicial activism they demand the Supreme Court exercise now to overturn the Affordable Care Act. As President George W. Bush told the 25th anniversary gala of the Federalist Society, the same cabal of right-wing lawyers trying to kill health care reform and smother Congress' longstanding commerce powers:
"For the judiciary, resisting this temptation [to encroach on the powers the Constitution accords to other branches] is particularly important, because it's the only branch that is unelected and whose officers serve for life. Unfortunately, some judges give in to temptation and make law instead of interpreting. Such judicial lawlessness is a threat to our democracy -- and it needs to stop."Of course, what really needs to stop is the ginned-up controversy over President Obama's comments this week, an imbroglio propelled still by headlines such as "Administration Concedes Courts' Review Power" and "White House in Damage Control Mode over Obama Supreme Court Remarks." After all, there would only have been damage if the words "conservative commentators", "commerce" and New Deal hadn't passed President Obama's lips this week.