The Volokh Conspiracy and Wall Street Journal both take issue with President Obama’s clarification of yesterday’s remarks, in which he makes clear that he has no issue with judicial review writ large — only with any Supreme Court decision that would review economic legislation with something less than heavy deference. The Journal:
The full name of the case, Lochner v. New York, should be a sufficient tip-off. In Lochner the court invalidated a state labor regulation on the ground that it violated the “liberty of contract,” which the court held was an aspect of liberty protected by the 14th Amendment’s Due Process Clause….
Lochner, which was effectively reversed in a series of post-New Deal decisions, did not involve a federal law–contrary to the president’s claim–and thus had nothing to do with the Commerce Clause, which concerns only the powers of Congress.
But the state/federal distinction is irrelevant to President Obama’s explicit point — that a decision against the mandate would be the first in almost a century to limit Congress’ authority to regulate economic markets — and his implied point, that using “economic freedom” as an argument against economic regulation is simply a dead issue, and has been since (yes) the 1930s. From West Coast Hotel v. Parrish, 300 U.S. 379 (1937):
The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.
And restated in the federal context, in upholding the Civil Rights Act of 1964:
Thus the power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce. One need only examine the evidence which we have discussed above to see that Congress may – as it has – prohibit racial discrimination by motels serving travelers, however “local” their operations may appear.
Nor does the Act deprive appellant of liberty or property under the Fifth Amendment. The commerce power invoked here by the Congress is a specific and plenary one authorized by the Constitution itself.
And again in a companion case:
But where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.
In other words, the notion that substantive due process creates a right to be free from reasonable economic regulation is dead. This was the President’s point. Whether it died on a battlefield reserved for state-vs.-federal conflicts, or intra-federal system conflicts, is irrelevant, because wherever the “right” died, it can no longer take either field. If the Supreme Court limits the Commerce Clause on the basis of some right to “economic freedom,” it will be new, it will be groundbreaking, and it will be a throwback to the pre-1930s era.