New Republic Senior Editor Jonathan Cohn – writing in that august publication – closes his defense of Pres. Obama’s pre-emptive assault on the U.S. Supreme Court’s possible forthcoming invalidation of Obamacare with the following paragraph:
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.
(It’s relevant to note that this paragraph survived Mr. Cohn’s updating of his essay.)
GMU Law’s David Bernstein, writing over at The Volokh Conspiracy, appropriately calls Cohn’s passage the “Most Honest use of Lochner.”
The “vision” that Mr. Cohn, Pres. Obama, and many other pundits and pols applaud as being “out of fashion” is one in which Uncle Sam’s itch to meddle in the private economic affairs of Americans knows no constitutional limits. Congress and the White House are to be trusted, unconditionally – without being restricted by any of those quaint pre-New Deal fears that government can be just as destructive and tyrannical when it regulates the economy as when it regulates the likes of speech or reproductive activities.
It’s a recipe for tyranny. And the fact that Messrs. Obama, Cohn, and other “Progressives” know in their hearts that they are motivated exclusively by good intentions does nothing whatsoever to reduce the risk of tyranny. Paving the road to hell, and all that….