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.
Any thoughts?
PILEUS 
I personally would relish a return to that level of constitutionality, but I doubt the conservatives would really like that. Most federal drug policy would be out of the window: if I make Meth in Texas and sell it in Texas to people who smoke/snort/or whatever it in Texas, then the federal government has no say. Federal sports gambling bans would also go rather quickly… and don’t get me started on the drunk driving blood alcohol and drinking age limits they have tied to federal highway funding.
My grandfather kept every tie he ever owned. He bought his first tie in 1926. He stopped buying ties in the sixties when he noticed that some of his ties were starting a second iteration of being in fashion. After that he always had a tie that was in fashion until the day he died in 1999.
Experience has taught me to distrust the person that blames me for misunderstanding a particular point of his communication. As we say in Boston, Cohn’s is the argument of a brown nosesah.