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Jacob Sullum
Jacob Sullum
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'Radical' Republicans: Unfortunately, No Basis for Obama's Claims About the GOP's Extremism


Last week, President Obama warned that if the Supreme Court stops Congress from forcing Americans to buy government-approved health insurance, it will be imposing restrictions on federal power of a sort not seen since the early 1930s, the late 1920s, 1905 or 1789. You can take your pick, since the president or his press secretary made all four of those assertions in the space of three days.

But why get hung up on dates? The main point is that Republicans, who want the court to overturn the health insurance mandate, are trying to undo the New Deal. Obama made a similar claim regarding the House Budget Committee's recently unveiled fiscal plan, which he called "thinly veiled social Darwinism," "an attempt to impose a radical vision on our country" and "antithetical to our entire history."

In truth, however, neither the constitutional constraints nor the budgetary tinkering advocated by the Republicans would make the federal government any smaller than it is now. I wish they were half as radical as the president portrays them.

At an April 2 press conference, a reporter asked Obama how he would respond if the Supreme Court overturns the individual insurance requirement. "Ultimately," he replied, "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

Leaving aside the fact that the law squeaked through Congress on a party-line vote, the president seemed to be questioning the Court's authority to overturn unconstitutional statutes. The following day, answering a question after his "social Darwinism" speech, Obama insisted that was not his intention.

Here is what Obama, who used to teach constitutional law, said he meant: "We have not seen a court overturn a law that was passed by Congress on a (sic) economic issue ... at least since Lochner. Right? So we're going back to the '30s, pre-New Deal."

Not quite. Lochner v. New York — which was decided in 1905, not in the '30s — involved a state restriction on bakers' hours, which the court said violated the "liberty of contract" protected by the 14th Amendment's Due Process Clause.

Unlike the challenge to the health care law, Lochner had nothing to do with the federal government's power to regulate interstate commerce.

Perhaps Obama was thinking of Schechter Poultry v. U.S., the 1935 case in which the court ruled that the National Industrial Recovery Act exceeded the authority granted by the Commerce Clause. His press secretary, Jay Carney, muddled matters further the next day, when he said the president either was "referring to 85 years of judicial precedent" or making "an unremarkable observation about 80 years of Supreme Court history," implying that the crucial year was 1927 or 1932.

In any event, the challenge to the health care law was deliberately designed to avoid reconsideration of the Court's Commerce Clause precedents, including Wickard v. Filburn, the 1942 ruling that said Congress has the authority to stop a farmer from growing wheat for his own use because such self-reliance reduces aggregate demand, thereby exerting "a substantial economic effect on interstate commerce." Since then this absurdly broad "substantial effects" doctrine has proven spacious enough to accommodate virtually everything Congress has tried to do under the pretext of regulating interstate commerce.

Obama's claims about the Republican fiscal plan were similarly overwrought. Like Obama, the Republicans want to increase spending, just not by quite as much. They imagine a total of $40 trillion in spending during the next decade, compared to Obama's $45 trillion.

"If everything goes according to plan," notes Mercatus Center economist Veronique de Rugy, "we won't have a balanced budget for decades." The Republican proposal — which, as Investor's Business Daily analyst John Merline points out, begins by spending 46 percent more, adjusted for inflation, than Bill Clinton did during his last year in office — adds $3.1 trillion to the national debt by 2022. Sadly, there's nothing radical about that.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @jacobsullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at



1 Comments | Post Comment
As a first time reader, I loved reading the column and suddenly I not only stopped feeling alone, I also, without making any effort, stopped banging my head against the wall.
Thanks for the help and support you gave me,
Tennessee Conservative
Comment: #1
Posted by: Larry Carlisle
Wed Apr 25, 2012 3:18 PM
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