The legal challenge to ObamaCare’s individual mandate, which requires the purchase of government-approved health insurance under Congress’ power to regulate interstate commerce, rests on the idea of judicial precedent. When the libertarian and conservative lawyers challenging the health care overhaul argue that requiring all Americans to purchase a product from a private company is unprecedented, they mean that the Supreme Court’s existing line of Commerce Clause cases in no way authorizes the federal government to engage in such behavior. As a result, the legal challengers are not asking the Court to overturn a single previous decision, not even the Court’s notorious 1942 ruling in Wickard v. Filburn, which held that cultivating and consuming wheat entirely on your own farm still counted as interstate commerce. Instead, the challengers are asking the justices to recognize that the individual mandate exceeds the bounds of what the Court has previously allowed and strike it down as a lawless exercise of government power.
And yet despite all of that, some ObamaCare defenders still persist in accusing the legal challengers of trying to repeal the New Deal and return America to the alleged horrors of the Gilded Age. The latest example of this faulty argument comes courtesy of former Obama administration lawyer Robert Weiner, in a guest post at the liberal legal blog Balkinization. Weiner writes:
To a remarkable degree, the challenges to the Affordable Care Act reflect an effort to codify legal nostalgia as legal doctrine. The opinions of some lower courts striking down the individual mandate, as well as the arguments of the States and private plaintiffs in the Supreme Court urging that result, repeatedly hark back to bygone eras of American jurisprudence. This legal facsimile of reincarnation seeks to revive not just the long discredited doctrines invoked by an ossified Judiciary to thwart the New Deal. It goes back further still, to the dogma of an earlier time when the Judiciary regarded its principal function as the protection of private property, even at the expense of social justice, democratic values, and other individual rights.
These arguments don’t stand up to scrutiny. Nowhere in the legal briefs challenging the health care overhaul filed by either the multi-state challengers or by the National Federation of Independent Business will you find anything in favor of reviving any “long discredited doctrines.” So Weiner strikes out on that count. And his bogus historical claims don’t fare any better.
According to Weiner, before the Supreme Court took a progressive turn on economic questions during the New Deal era, “the Judiciary regarded its principal function as the protection of private property, even at the expense of social justice, democratic values, and other individual rights.” In fact, he asserts, economic rights trumped civil rights to such an extent that “minorities could not get a fair shake.”
Yet Weiner conveniently ignores the fact that one of the most significant civil rights decisions of the first half of the 20th century came about precisely because of the judicial protection of property rights, the very thing Weiner dismisses as mere dogma.
At issue in the case of Buchanan v. Warley (1917) was a Louisville, Kentucky law segregating residential housing blocks by race. NAACP president Moorfield Storey, a libertarian lawyer who helped found the pioneering civil rights organization, won the case by arguing that this Jim Crow law violated property rights under the Due Process Clause of the 14th Amendment. As Justice William Day held for a unanimous Supreme Court, “Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it.” Furthermore, Day wrote, the 14th Amendment “operate[s] to qualify and entitle a colored man to acquire property without state legislation discriminating against him solely because of color.”
It was a major ruling. As the George Mason University legal scholar David Bernstein has explained, “Buchanan almost certainly prevented governments from passing far harsher segregation laws [and] prevented residential segregation laws from being the leading edge of broader anti-negro measures.” Civil rights leader W.E.B. DuBois credited the case with “the breaking of the backbone of segregation.”
So not only does Weiner fail to accurately describe the legal issues at stake in the ObamaCare case, he also flunks out on the legal history. That's not what I'd call a winning argument.