What’s Obama Thinking? Wickard, not Marbury

Although Filburn is a landmark case known to lawyers, it's not exactly a household term like Roe v. Wade. It doesn't seem to affect the average person -- after all, how many people grow wheat to feed their chickens in defiance of government limits? But Filburn's effects have been far-reaching: It set the upper limit for federal power under the Commerce Clause, which was no limit at all. Like the 800-pound gorilla in the old joke, since Filburn the government could do pretty much anything it wanted to by calling it interstate commerce.

That situation held until 1995, when U.S. v. Lopez marked the first limit set by the Supreme Court on the federal government's power to regulate interstate commerce since Filburn. In Lopez, a challenge to the Gun-Free School Zones Act of 1990, the Court ruled -- to the astonishment of many -- that a federal law passed to ban guns from school grounds was an unconstitutional overreach of the Commerce Clause. The statute involved in Lopez was easily fixed; Congress simply passed a new law that added wording to the effect that the gun in question had to have "moved in or … otherwise affect ... interstate or foreign commerce" and voila, the challenge was over.

But despite Lopez, the heavy weight of precedent since Filburn had been to allow Congress an unconscionable amount of latitude to do just about anything it wanted regarding commerce, and to define it all as interstate.

This is what Obama was referencing in his remarks when he used the words "commerce," "pre-New Deal," and "well-established precedence" (he conveniently left out Lopez, of course). And this is why the ObamaCare challenge to the individual mandate has been so hugely threatening to liberals, and why conservative justices such as Clarence Thomas and Antonin Scalia have been such thorns in their sides.

Liberals had won an astonishing victory during the late ‘30s and early ‘40s that affected countless subsequent decisions. They had every reason to think that the war over the scope of the Commerce Clause was finished long ago. But then Lopez turned out to be only the first skirmish in what has since become a huge and renewed battle. At stake is not only the enormously important ObamaCare statute, but whether the Court will finally set some more definitive limits on federal power in the realm of commerce.

Before this, the left was hoping that Obama's re-election in 2012 would mean that he almost certainly would get to appoint more Supreme Court justices, and that the threat would have passed. But in the meantime, at the eleventh hour -- and right before that all-important 2012 election -- not only is the ObamaCare case being heard, but in a shocking development the hearings did not appear to go well for their side. At least five justices (including swing vote Kennedy) asked questions that indicated they might be willing to put a halt to the individual mandate and to declare an act of Congress in the sphere of commerce to be an unconstitutional overreach of the Commerce Clause.

No wonder Obama wanted to warn the Court: hey, you don't want to be old-fashioned dinosaurs like FDR's nine old men, do you? You can't possibly want to go back in time to the bad old days when the Court thought it could halt our wonderful liberal progress, no?

If at least five justices answer "actually, we do," it would signal trouble not just for ObamaCare, but for the idea that the Supreme Court must uphold an ever-expanding growth of the power of the federal government. Obama must be well aware of these facts.