Was the President Right on Judicial Activism?

Well, he was, according to Jonathan Cohn in the New Republic:

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.

Although Cohn dismisses their importance, we have to say that the president's account includes some errors.  The Lochner case, for example, had nothing to do with the commerce clause, and so it, of course, had nothing to do with the power of Congress to regulate under that clause.

The Lochner case negated a state law regulating the number of hours that could be worked by bakers, and it was decided according to the liberty of contract the Court found in Due Process Clause of the Fourteenth Amendment.

The opinion of the Court in Lochner has generally been discredited as a precedent because it failed to give the benefit of the doubt to the state law as a reasonable regulation (see Justice Harlan's dissent, not the mess written by Justice Holmes).  "Liberty" became an aggressive tool of judicial activism.

There are some libertarians these days who want to rehabilitate Lochner, applying the test Randy Barnett calls the "presumption of liberty" to every law national and state.  Law is unnecessary unless a convincing argument is given otherwise.  Barnett, in this spirit, applauds the Court's decisions in both Lochner and  Roe v. Wade as protecting indispensable dimensions of liberty against tyranncial state majorities.

Not many Americans, of course (and certainly neither the President nor Governor Romney), would be for a Court that consistently "activist."  Governor Romney, but not the President, regards Roe as the aggressive result of judicial activism.  From a very consistently libertarian view, both Obama and Romney are quite selective in what they call judicial activism.

But the "affordable care" mandate case won't be decided that way.  If the mandate and perhaps more of the law are struck down, it will be because Congress has no power to compel an act of commerce under the commerce clause.

That will mean, of course, that the state mandates are constitutional under the "police powers." The commerce clause is not meant to limit state legislatures.  Romney will, in a way, be vindicated in his assertion that what Massachusetts may do Congress may not.  (Yes, I realize, that he also said a couple of times that he was for the national mandate, just as I realize he never has given the correct constitutional reason for distinguishing between state and national mandates.)

The consistent libertarians want the Court to strike down mandates both national and state as equally offenses against liberty. And that consistency would be in the genuine spirit of Lochner. But I will be astonished if that happens.  I will be more than willing to call that judicial activism.

Related Articles

Scientists discover what caused the worst mass extinction ever

How a cataclysm worse than what killed the dinosaurs destroyed 90 percent of all life on Earth.

Credit: Ron Miller
Surprising Science

While the demise of the dinosaurs gets more attention as far as mass extinctions go, an even more disastrous event called "the Great Dying” or the “End-Permian Extinction” happened on Earth prior to that. Now scientists discovered how this cataclysm, which took place about 250 million years ago, managed to kill off more than 90 percent of all life on the planet.

Keep reading Show less

Why we're so self-critical of ourselves after meeting someone new

A new study discovers the “liking gap” — the difference between how we view others we’re meeting for the first time, and the way we think they’re seeing us.

New acquaintances probably like you more than you think. (Photo by Simone Joyner/Getty Images)
Surprising Science

We tend to be defensive socially. When we meet new people, we’re often concerned with how we’re coming off. Our anxiety causes us to be so concerned with the impression we’re creating that we fail to notice that the same is true of the other person as well. A new study led by Erica J. Boothby, published on September 5 in Psychological Science, reveals how people tend to like us more in first encounters than we’d ever suspect.

Keep reading Show less

NASA launches ICESat-2 into orbit to track ice changes in Antarctica and Greenland

Using advanced laser technology, scientists at NASA will track global changes in ice with greater accuracy.

Firing three pairs of laser beams 10,000 times per second, the ICESat-2 satellite will measure how long it takes for faint reflections to bounce back from ground and sea ice, allowing scientists to measure the thickness, elevation and extent of global ice

Leaving from Vandenberg Air Force base in California this coming Saturday, at 8:46 a.m. ET, the Ice, Cloud, and Land Elevation Satellite-2 — or, the "ICESat-2" — is perched atop a United Launch Alliance Delta II rocket, and when it assumes its orbit, it will study ice layers at Earth's poles, using its only payload, the Advance Topographic Laser Altimeter System (ATLAS).

Keep reading Show less