There have been some wonderful pieces written in the past few weeks trying to make sense of the President’s claim that a SCOTUS decision to overturn the Affordable Care Act would be unprecedented. Of course, the pieces often proceed as follows
- The President stated X
- The President obviously knows not-X
- Therefore X must have a deeper meaning and significance
The newest installment—and one that may come the closest to providing an accurate interpretation—is written by Jonathan Cohn i(n today’s New Republic). As you will recall, the Solicitor General made reference to Lochner and Chief Justice Roberts responded by reminding the government’s attorney that the decision involved state regulation rather than federal regulation. Deploying the approach presented above, we can conclude that either (1) the SG was incompetent or (2) the appeal to Lochner had a deeper meaning that must be discerned. Obviously, (1) could not be true.
After a rather enjoyable discussion, Cohn concludes:
But I’m pretty sure both Obama and his administration’s lawyer were saying something different, and broader, when they invoked Lochner: By invalidating the Affordable Care Act, the Supreme Court would be resurrecting a vision of constitutionally limited government that, quite rightly, went out of fashion a long time ago.