Fried mangles Supreme Court history by insisting that the scope of the commerce power was settled as early as 1824 in Gibbons v. Ogden, which he does not refer to by name. Of Gibbons, Fried explains, “If something is within the power of Congress, Congress may exercise that power to its fullest extent.” Fried is not alone in offering this preposterous interpretation of Gibbons. In a recent public broadside, over a hundred law professors put the point as follows: “The current challenges to the constitutionality of this legislation seek to jettison nearly two centuries of settled constitutional law.” Both these statements are flat out falsehoods.
For starters, it is clear that the defenders of Obamacare are seeking the high ground by establishing a link back to our greatest Chief Justice, John Marshall, by making it appear as if nothing much of consequence happened between Gibbons and the present time. In so doing, they act like the New Deal revolution in Commerce Clause jurisprudence never really happened, when, as I have previously written, it expanded the scope of the commerce power by perhaps one hundred-fold, if not more, in the 1937 decision of NLRB v. Jones & Laughlin and the 1942 decision of Wickard v. Filburn.