What’s Obama Thinking? Wickard, not Marbury
Obama's remarks about the Supreme Court and ObamaCare have been criticized by conservative pundits as intemperate, inflammatory, and ignorant. What was he thinking when he said the Court would be taking an "unprecedented, extraordinary step" if it overturned a law duly passed by Congress? How could a constitutional law professor not have heard of Marbury v. Madison, which long ago established that the Court may do exactly that?
When Obama attempted damage control the next day, his remarks provided a clue as to what he might have been thinking in terms of precedent -- and it wasn't Marbury v. Madison:
[L]et 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.
[T]he 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. ... I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there.
In the late 1930s, Franklin Delano Roosevelt was proposing -- and the Democratic Congress under him was passing -- laws that would have required the Court to allow the federal government power to regulate interstate commerce far beyond any that had been granted before in this country. The resulting fight within the Court was similar to the battle today: textualists and originalists on the conservative side; proponents of a living Constitution almost infinitely malleable on the liberal side.
FDR first tried to retaliate against the conservative justices by packing the Court. That attempt failed, but his intimidation nevertheless managed to transform the Court into an instrument far more in line with his wishes. The shift had an especially profound effect on the judicial review of legislative actions that affect commerce:
Prior to the New Deal the judiciary was seen as guardian of the Constitution, ensuring that government activities of all kinds squared with the principles of the federal charter. Following the New Deal era, the judiciary's function changed to one of "bifurcated review," allowing great deference to the political branches in regulating economic matters and applying heightened scrutiny to government encroachments on civil liberties. [emphasis added]
It didn't hurt, either, that during his extended tenure as president Roosevelt ultimately appointed eight of its nine justices, affecting the Court's tenor long past his service and solidifying the extreme liberalizing trend.
How liberal and how extreme? Although Charles Dickens had his Oliver Twist character Mr. Bumble famously declare the law to be "a ass," most people may not realize just how big an ass the law can be until they study the 1942 Supreme Court ruling Wickard v. Filburn.
Filburn was a farmer who had been growing more than the maximum amount of wheat per acre that had been set by a 1938 federal statute. The government wanted him to destroy the excess and pay a fine. But he argued that his wheat was not interstate commerce, because it was kept completely within the confines of his own farm and only fed to his livestock.
Common sense would dictate that Filburn was correct: after all, he wasn't selling his wheat anywhere, much less interstate. But the Court ruled that Filburn's wheat-growing activities meant he'd be buying less wheat on the market to feed his chickens, and that would affect interstate commerce. As the New York Times of the day rightly observed in an editorial:
The net of the ruling … seems to be that Congress can regulate every form of economic activity if it so decides.
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.