The PJ Tatler

'Unprecedented'? That Word Does Not Mean What Obama Thinks It Means

Here’s President Obama’s SCOTUS attack walk back attempt:

“Well, first of all, let me be very specific. Um, [pause] we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner, right? So we’re going back to the ‘30s, pre-New Deal.”

Let’s fact check the president.

The Lochner (1905) case involved state law. It was called Lochner vs New York because it involved a conviction of a bake shop owner under a state labor law.

The Bakeshop Act was a New York state labor law which prohibited bakery employees from working for more than sixty hours per week or ten hours per day. Lochner permitted an employee to work in his bakery for more than sixty hours in one week and was convicted of his second offense and fined. Lochner appealed his conviction on the grounds that the law violated his freedom to contract under the Due Process Clause of the Fourteenth Amendment.

How that case applies to the federal ObamaCare mandate, the US Congress and the Commerce Clause is…well, anyone’s guess. It doesn’t.

The president also said it would be “unprecedented” to overturn a law based on the Commerce Clause because the courts haven’t done that since before the New Deal. Much of the New Deal itself was found unconstitutional by the Supreme Court; that’s why FDR tried to expand the court and then pack it with his cronies. But the president isn’t correct that the courts have not thrown out a law based on finding limits to the Commerce Clause since before the New Deal. In United States vs Lopez, the Supreme Court ruled that Congress’ powers under the Commerce Clause are limited. That ruling came down in 1995, the same year that Barack Obama launched his political career.