ObamaCare May Be in Legal Trouble, But the New Deal Is Not


What doomsday scenario will unfold if the Supreme Court strikes down the Patient Protection and Affordable Care Act's individual mandate? Here's the parade of horribles envisioned earlier this week by President Barack Obama:

"We have not seen a court overturn a law that was passed by Congress on an economic issue, like healthcare, that I think most people would clearly consider commerce," the president said. "A law like this has not been overturned at least since Lochner. Right? So we're going back to the '30s, pre-New Deal."

Wrong. Lochner v. New York concerned a state regulation, not a federal one; the law was struck down under the Due Process Clause of the 14th Amendment, not the Commerce Clause; and the decision came down in 1905, not "the '30s." Also, the Supreme Court struck down all sorts of state and federal economic regulations after Lochner was decided, so the case hardly represents some sort of outer marker. These aren't earth-shattering errors by the president, of course, but they are a little unfortunate coming from a former constitutional law lecturer. (Nor is this the first time Obama has been wrong about Lochner.)

But more important, the legal challenge to the individual mandate has nothing whatsoever to do with overturning any New Deal era precedents. When Randy Barnett, Paul Clement, and the other legal challengers argue that it would be unprecedented for the federal government to force us all to buy health insurance from a private company, they mean precisely that. The Supreme Court has never before recognized such a sweeping form of congressional power under the Commerce Claue. The individual mandate is thus without legal precedent. And because the mandate cannot be justified under any existing line of cases, the Supreme Court doesn't need to overturn any of its previous decisions if it decides to strike the mandate down. So the New Deal's landmark Commerce Clause rulings, like Wickard v. Filburn (1942)—which allowed Congress to regulate purely local economic activity if that activity has a "substantial effect" on genuine interstate commerce—won't be touched at all.

The president may breathe a sigh of relief.