In comments made recently about the pending Supreme Court case involving the Heath Care Reform Act Obama was quoted as saying
"Ultimately I am 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"
In taking another warning shot at the Supreme Court while they decide one of the most critical cases concerning the Commerce Clause in the past 100 years Obama further expands his meaning.
"We have not seen a court overturn a law that was passed by Congress, on a economic issue, like healthcare -- like I think most people would clearly consider commerce -- a law like that has not been overturned at least since Lochner"
Presumably Lochner V. New York 198 U.S. 45 (1905)
This is an interesting argument in that it holds:
The Supreme Court of the modern era, has never found a limit to the power of the Commerce Clause, and so it would be wrong for them to start now.
They have ruled, that goods and services not entering into interstate commerce could be regulated and controlled by government if they affected interstate commerce.
They have ruled, that goods not entering into commerce at all, but produced and consumed by one party could be regulated in that the choice to produce the goods affected interstate commerce.
They have ruled, every action you take that affects commerce can be regulated and controlled, because anything that affects commerce also goes on to affect interstate commerce.
The last hurdle, inaction, is under assault. In that the government wants to regulate what you do not do in that your decision NOT to do so affects commerce.
In our modern world, everything you do or choose not to do affects commerce and therefore interstate commerce in some way. Every decision you make in your life, every last one, affects commerce. If this is upheld, not only does the government have the power to tell you what not to do, they would now and forever have the power to tell you what to do. Should the Supreme Court uphold Health Care reform, they would be destroying the last vestige of federalism, and shoving a stake in the heart of freedom. Indeed you could replace ALL of the enumerated powers in the Constitution with the single clause to regulate interstate commerce and you have granted such a government infinite power to control all aspects of life in these United States according to Barack Obama that further explanation of governmental power is unnecessary.
It would be one thing for President Obama to publicly make the limited case argument: yes generally it would be unconstitutional but for Just This One Thing™ because it is so special the government needs extraordinary control.
I don't buy that at all either. Special cases are just code words for getting your foot in the door. But Obama doesn't even bother couching his position in the “one off” argument, more than implying that on economic issues of commerce Congressional power holds no limits whatsoever and that striking the law would be judicial activism.
To the Court I can say only this. All things affect commerce. You are the last refuge for a political remedy to protect the freedom of the many Citizens. Decide whether we live in a government of limited power or not.
Clearly though, President Obama, does not believe that the Government’s power to control is in any way limited by enumeration; That since the Supreme Court has not found a limit to this power, that they never should.