President Obama Shockingly Gets a Small Point of Legal History Wrong


Speaking to reporters yesterday about his healthcare reform legislation, President Obama suggested that “a law like that” — i.e., one that clearly regulates interstate commerce — “has not been overturned at least since Lochner, right? So we’re going back to the ’30s, pre-New Deal.” James Taranto is simply outraged:

In fact, Lochner — about which more in a moment — was decided in 1905. Thirty years later, after the New Deal had begun, the high court unanimously struck down one of its main components, the National Industrial Recovery Act, as exceeding Congress’s authority under the Interstate Commerce Clause. The case was A.L.A. Schechter Poultry Corp. v. U.S.  (1935).

….In citing Lochner, the president showed himself to be in over his head. 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”….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.

This cracks me up. It’s true that Obama got this wrong. Clearly he hasn’t been brushing up on his con law cases lately. But I’d be surprised if a single person in the original Republican primary field had even heard of Lochner or Schechter. As I recall, in 2008 Sarah Palin couldn’t even name a single Supreme Court case other than Roe v. Wade.

Conservatives have long been desperate to paint Obama as an idiot — when they’re not busy painting him as a Harvard elitist, that is — but if the best they can do is to feign outrage over the fact that Obama mis-cited a century-old Supreme Court case, they’re digging pretty deep. If that represents the outside boundaries of Obama’s ignorance, I’d say we have a pretty well-briefed president.

UPDATE: Okay, two things. First, it was a wee bit hyperbolic to suggest that none of the Republican primary candidates had heard of Lochner or Schechter. Several of them are law school grads, and those are famous cases. They’ve probably heard of them.

Second, one of the common defenses of Obama is that he meant to say “Lochner Era,” which is just shorthand for the era from 1905 to the mid-30s, during which the Supreme Court routinely struck down laws that regulated commercial interests. Maybe so. But he specifically mentioned “pre New Deal,” and the Lochner Era goes at least until 1935, when Schechter was handed down. That was very famously a New Deal case (it overturned the NIRA), not pre-New Deal. So that doesn’t really fit.

Generally speaking, I’ve been a little surprised at how careless Obama has been on all this. His original statement that overturning ACA would be “unprecedented” was pretty sloppy. As it happens, I think it would be unprecedented in recent history, but you need to say that, and then say at least a few words about why it would be unprecedented. And the Lochner stuff was sloppy too. I’m not sure why he hasn’t been a little more careful in his choice of words.

Nonetheless, listening to conservatives wail about a minor bit of imprecision in a small corner of con law history is a little hard to take, as is their frenzied suggestion that Obama was repudiating the whole concept of judicial review. Coming from a party that makes ridicule of pointy-headed, book-learnin’ elites practically a litmus test for the presidency, it’s a bit much.

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