Jacob Sullum


Last week, President Obama warned that if the Supreme Court stops Congress from forcing Americans to buy government-approved health insurance, it will be imposing restrictions on federal power of a sort not seen since the early 1930s, the late 1920s, 1905 or 1789. You can take your pick, since the president or his press secretary made all four of those assertions in the space of three days.

But why get hung up on dates? The main point is that Republicans, who want the court to overturn the health insurance mandate, are trying to undo the New Deal. Obama made a similar claim regarding the House Budget Committee's recently unveiled fiscal plan, which he called "thinly veiled social Darwinism," "an attempt to impose a radical vision on our country" and "antithetical to our entire history."

In truth, however, neither the constitutional constraints nor the budgetary tinkering advocated by the Republicans would make the federal government any smaller than it is now. I wish they were half as radical as the president portrays them.

At an April 2 press conference, a reporter asked Obama how he would respond if the Supreme Court overturns the individual insurance requirement. "Ultimately," he replied, "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."

Leaving aside the fact that the law squeaked through Congress on a party-line vote, the president seemed to be questioning the Court's authority to overturn unconstitutional statutes. The following day, answering a question after his "social Darwinism" speech, Obama insisted that was not his intention.

Here is what Obama, who used to teach constitutional law, said he meant: "We have not seen a court overturn a law that was passed by Congress on a (sic) economic issue ... at least since Lochner. Right? So we're going back to the '30s, pre-New Deal."

Not quite. Lochner v. New York -- which was decided in 1905, not in the '30s -- involved a state restriction on bakers' hours, which the court said violated the "liberty of contract" protected by the 14th Amendment's Due Process Clause. Unlike the challenge to the health care law, Lochner had nothing to do with the federal government's power to regulate interstate commerce.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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