WASHINGTON -- Looking to a Supreme Court decision in the health care case months away, President Barack Obama has locked horns with Chief Justice John Roberts over how historically significant a decision striking down the mandate would be.
"We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce -- a law like that has not been overturned at least since Lochner," Obama told reporters on Tuesday, defending his Affordable Care Act in the face of news stories predicting a loss at the high court. "So we're going back to the '30s, pre-New Deal."
Lochner. It's a name familiar to lawyers, but barely known to the general public. Referring to a 1905 Supreme Court case, Lochner v. New York, that struck down a state law capping bakers' weekly hours, the epithet harkens back to an era, stretching roughly from the 1890s through the 1930s, when a conservative Supreme Court struck down liberal economic regulations at the state and federal levels.
Invoking Lochner's specter of aggressive judicial activism has long been the legalese equivalent of brandishing a cross before a vampire. And President Obama, a former constitutional law lecturer at the University of Chicago, knows full well that no justice, spare Clarence Thomas, wants to be grouped with discredited predecessors who read laissez-faire, Social Darwinist policy preferences into the Constitution to thwart the will of the people on issues ranging from minimum wages to child labor.
Perhaps that is why Chief Justice Roberts during last week's oral arguments sought to stamp out any suggestion of Lochner's relevance to the health care cases. Solicitor General Donald Verrilli, defending the health care law's individual mandate under heavy fire from the Republican-appointed justices, had just used the L-word to characterize his opponents' argument.
"The key in Lochner is that we were talking about regulation of the states, right, and the states are not limited to enumerated powers," Roberts said. "The federal government is. And it seems to me it's an entirely different question when you ask yourself whether or not there are going to be limits on the federal power, as opposed to limits on the states, which was the issue in Lochner."
In Roberts' framing, a decision to strike down the individual mandate would not be a step toward reviving an infamous era of constitutional history. Rather, it would be a routine policing of the outer bounds of Congress' power to regulate interstate commerce.
Never mind that such policing, as Obama emphasized, has not been used to strike down a sitting president's signature legislative achievement in more than 75 years. Or that those earlier decisions flowed not from federalism concerns, but from a hostility -- sometimes openly stated -- to progressive presidents, Congresses and statehouses.
David Bernstein, a law professor at George Mason University, said that Obama and Roberts reflect the "very different perspectives that the left and the right have on Lochner." Bernstein, who wrote the book "Rehabilitating Lochner," is a libertarian sympathetic to the pre-New Deal Court's active enforcement of economic rights.
For the right, said Bernstein, the case stands for the Supreme Court's illegitimate imposition of its political beliefs -- whether against workers' protections a century ago or in favor of abortion and gay rights today -- upon the states.
"On the left, what was wrong with Lochner was not that the judiciary was being too aggressive," Bernstein said. "The problem was that the courts should stay out of the field of reviewing government's economic regulations."
Both sides can agree, then, that Romneycare, as a state regulation of its health care industry, will stand even if Obamacare falls.
But an unscathed Massachusetts mandate -- and any state laws that might follow in the federal mandate's demise -- would hardly subdue the sense among the Affordable Care Act's supporters that the Roberts Court, with its five Republican appointees, is the most radically conservative Supreme Court since the 1930s.
Obama's reference to Lochner served to limit the scope of his comments on Monday, when he expressed his confidence that "an unelected group of people" would not take the "unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress." That statement still set off a firestorm over whether he was denying the Supreme Court's power, accepted since the 1803 case of Marbury v. Madison, to do just that.
On Tuesday, a federal appeals court in Texas, hearing argument over another provision of the Affordable Care Act, demanded from the Department of Justice a three-page, single-spaced letter "stating specifically and in detail in reference to [the president's Monday] statements what the authority is of the federal courts in this regard in terms of judicial review." Judge Jerry Smith, who issued the highly unusual order, is a Republican appointee, as are the other two judges on the panel.
The Obama administration, for its part, doubled down on referencing Lochner to shape the constitutional and political narrative while the justices draft their opinions behind closed doors. At a briefing on Wednesday, White House Press Secretary Jay Carney used the term four times.
The Justice Department's letter, due on Thursday at noon to the U.S. Court of Appeals for the 5th Circuit, is expected to affirm that the Obama administration considers judicial review, in general, an uncontroversial fact of the American constitutional system. But Smith's order also presents the administration with another opportunity to impress upon the federal judiciary that a decision split sharply along partisan lines that rejected an economic regulation after three-quarters of a century of leaving Congress largely to its own devices would play poorly in the public arena.
Before last week's Supreme Court arguments, many expected that consideration would outweigh Chief Justice Roberts' gut distaste for the mandate. His Lochner comments, meant to neutralize the Obama administration's appeals to history and turn the radical into the routine, suggest otherwise.