Last night on CNN, host Eliot Spitzer asked Virginia Attorney General Ken Cuccinelli (R) to name a single recent Supreme Court case striking down a law, like the Affordable Care Act, which regulates the national economy. In response, Cuccinelli could do nothing more than babble:
SPITZER: Name the case where the Supreme Court has overruled an economic regulation passed by Congress in the last twenty years — an economic regulation.
CUCCINELLI: An economic regulation? We’ve got four Commerce Clause cases in the last eighty years.
SPITZER: Name one. Name One.
CUCCINELLI: The ones that have ruled for the limited government side are not, ah, didn’t involve products, well, they didn’t involve products they involved enforcement. I will tell you this: federal government is the one expanding the law here. Not us. Not us.
The reason why Cuccinelli could not cite a single case supporting his meritless arguments against the Affordable Care Act is because no such case exists. Rather, there is a long line of cases stretching back as far as 1824 saying that it is not the job of judges to second guess how Congress decides to regulate the national economy.
To be fair, there was a brief period from the 1880s until the 1930s when the Supreme Court invalidated everything from child labor laws to pro-union regulations to antitrust suits, but this disastrous line of cases was overruled more than seventy years ago. No Supreme Court case from either the last 70 years or the first century of the American republic supports Cuccinelli’s assault on health care.
Indeed, a close reading of Cuccinelli’s briefs challenging health reform suggests that Cuccinelli’s real goal is to bring back the era when nearly everything was forbidden by the Supreme Court. In one of his briefs challenging health reform, Cuccinelli suggests that Congress is allowed to regulate “commerce on one hand” but not “manufacturing or agriculture.” This is exactly the same discredited vision of the Constitution the Supreme Court implemented in the late 19th and early 20th century, and it would strike down child labor laws, the minimum wage, the federal ban on whites-only lunch counters, and countless other cherished laws.