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Lochner v. New York (1905), introduced the concept of "economic liberty" into the constitution.  Since about 1937, Lochner has come to be regarded, and even reviled, as wrongly decided.  That is, until now, when the opponents of the Affordable Care Act are asking the court, to strike down the entire Affordable Care Act as beyond the power of Congress.  Now, Lochner is not mentioned by the law's opponent, but its even more detested offspring, Hammer v. Dagenhart is.)

In Lochner two bakery owners were convicted of violating a law  which barred them from allowing their employees to work more than 60 hours per week.  They appealed, first to the highest court in New York, which turned down the appeal, and then to the Supreme Court. After some preliminary remarks, the court defined the issue:

The right to purchase or to sell labor is part of the liberty protected by [the Fourteenth Amendment] unless there are circumstances which exclude the right. There are, however, certain powers, existing in the sovereignty of each State in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the State in the exercise of those powers, and with such conditions the Fourteenth Amendment was not designed to interfere.

The State therefore has power to prevent the individual from making certain kinds of contracts, and, in regard to them, the Federal Constitution offers no protection. If the contract be one which the State, in the legitimate exercise of its police power, has the right to prohibit, it is not prevented from prohibiting it by the Fourteenth Amendment. Contracts in violation of a statute, either of the Federal or state government, or a contract to let one's property for immoral purposes, or to do any other unlawful act, could obtain no protection from the Federal Constitution as coming under the liberty of.. person or of free contract.

Below the fold, I show how the court, having erected this standard, proceeded to use it to establish itself as a super-legislature, what conservatives now condemn as "judicial activism" and then, having whisked away state regulation under the spurious doctrine of "economic liberty", went on to strike down federal regulation of things such as child labor, on the grounds it was not sufficiently linked to "interstate commerce".  

These ideas, once thought long dead, are being revived by the challengers to the Affordable Care Act, by which they hope, it appears, to set up the Supreme Court again as a super-legislature to challenge any reform which the progressive movement might actually be able to get through Congress.

In Lochner the court was presented with a series of prior cases where apparently similar regulations by a state had been upheld, but Justice Peckham, writing for the court, held that these weren't binding, as they either arose out of mining and smelting regulations Holden v. Hardy, contracting rules set by a state for municipalities, (Atkin v. Kansas), wage arrangements for miners and coal workers (Knoxville Iron Co. v. Harbison), compulsory vaccinations (Jacobson v. Massachusetts), and a requirement that barber shops close on Sundays (Petit v. Minnesota).  

Peckham, writing for the court, was of course quite dishonest in rejecting these precedents.  For surely if a man could be forced to submit to vaccination, his liberty of contract could be curtailed to all no more than 10 hours work per day in a bakery.

After announcing that it would not necessarily respect the state legislature's declaration that a particular law was necessary for the health, safety and welfare of the population, the court  then stated the test by which the constitutionality of these types of statutes would be judged.  

In every case that comes before this court, therefore, where legislation of this character is concerned and where the protection of the Federal Constitution is sought, the question necessarily arises: is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family? Of course, the liberty of contract relating to labor includes both parties to it. The one has as much right to purchase as the other to sell labor.
Although the court then protested that "this is not a question of substituting the judgment of the court for that of the legislature", in fact that is exactly what it proceeded to do.  First the court rejected the ability of the state to regulate the hours worked in bakeries based strictly as a matter of labor regulation.  
There is no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor in the occupation of a baker. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the State.
The court next proceeded to reject the case on the health ground, making its own factual findings in lieu of the legislature:
Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week.
This of course was absurd.  When one reads the whole legislation, it's obvious that the legislature felt that people were not just working in the bakeries, but were living there as well,  In the judgment of the legislature, this presented a hazard to public health and safety. Obviously a person who worked more than 60 hours a week might well be inclined to simply sleep at the job, and in fact this was happening.  Again, it was well within the legislature's perogative, simply as a matter of public health, to set a limit as to the hours worked at bakeries lest the bakery workers become residents at their workplaces.  Peckham's single sentence rejection of this as reasonable ground for the legislation was judicial arrogance in the extreme.  

Peckham, unsure it seems of the strength (or lack thereof) blathered on about how some of the state court judges had found the act unconstitutional.  Peckham also found there wasn't enough proof that working more than 60 hours in a bakery was harmful to the health of the workers, although based on his idea of liberty of contract, it seems that the workers should have been able to bargain away their health as well.

Peckham's language on this has to be read to be believed.  He clearly sets himself up as a super-legislator:

We think that there can be no fair doubt that the trade of a baker, in and of itself, is not an unhealthy one to that degree which would authorize the legislature to interfere with the right to labor, and with the right of free contract on the part of the individual, either as employer or employee. In looking through statistics regarding all trades and occupations, it may be true that the trade of a baker does not appear to be as healthy as some other trades, and is also vastly more healthy than still others.
So who is to draw the line here, the legislature or the courts, as to which occupations are sufficiently unhealthy to warrant legislative intervention and which are not?  Peckham arrogates that function to the courts.  There's no point in repeating his verbiage here, but he goes on for some length, completely unencumbered by any citation to precedent, about all the horrible things that will happen if bakers in New York are not "free" to work more than 60 hours per week.  

And again, we see Peckham simply making up findings in lieu of the legislature:

In our judgment, it is not possible, in fact, to discover the connection between the number of hours a baker may work in the bakery and the healthful quality of the bread made by the workman. The connection, if any exists, is too shadowy and thin to build any argument for the interference of the legislature. If the man works ten hours a day, it is all right, but if ten and a half or eleven, his health is in danger and his bread may be unhealthful, and, therefore, he shall not be permitted to do it. This, we think, is unreasonable, and entirely arbitrary.
Peckham suspected that the 10 hour a day rule wasn't entirely motivated by health reasons, and he may have been right.  But that possibility didn't foreclose a health or safety rationale as well, yet the mere possibility of an ulterior motive by the legislature was enough for him and the other justices to strike the law down.  For they smelled a rat:
This interference on the part of the legislatures of the several States with the ordinary trades and occupations of the people seems to be on the increase.
Here finally Peckham was able to dredge up a few cases in the lower courts, and so here was the Supreme Court of the United States, picking around for a few cases here and there for legal precedent.  For example, a trial level judge in New York, as well as the Supreme Courts of the states of Washington and Illinois had found that a law requiring persons engaged in horse shoeing obtain, via an examination, licenses was "an arbitrary interference with personal liberty and private property without due process of law."  Of course, an improperly shod horse could break a leg or throw a shoe, which would clearly endanger the public, but no matter, I suppose, as that wouldn't be justfication, in Peckham's eyes, for requiring licensure.

And Peckham again reiterated his suspicion of the legislature's motives:

It is impossible for us to shut our eyes to the fact that many of the laws of this character, while passed under what is claimed to be the police power for the purpose of protecting the public health or welfare, are, in reality, passed from other motives.  * * *  It seems to us that the real object and purpose were simply to regulate the hours of labor between the master and his employees (all being men sui juris) in a private business, not dangerous in any degree to morals or in any real and substantial degree to the health of the employees.
Justice Harlan dissented, and, joined by two other justices, cited studies showing the health-destroying effects of working in a bakery in those times.  Justice Holmes also dissented, and squarely accused the majority of acting as a super-legislature.

Effect of Lochner
Lochner gave rise to the so-called "Lochner era" of constitutional interpretation, where in fact the courts did act as super-legislatures, but all in the guise of construing the liberty clause of the 14th amendment.  Powerful interests that were affected by legislative action would resort to the courts to have legislation overturned.  While as it turns out, the courts generally sustained legislative action against Locher challenges, this was certainly not always true, and the fact that the courts might strike an economic or social regulation down shaped or delayed such legislation.

Lochner also spelled over into interpretations of the power of Congress to regulate interstate commerce.  In this situation, the court ostensibly was construing what was or was not "commerce between the states" but in fact it sat as essentially a superlegislature, as the definition of commerce was something that could be expanded or contracted at will insofar as it suited the majority on the court.  Probably the absolute lowest point here came with the case of Hammer v. Dagenhart, where the court ruled that Congress lacked the power to bar child labor in factories, on the grounds that the power to regulate interstate commerce did not extent to the manufacture of goods intended for interstate commerce, but only to their actual transportation.  

Eventually all this meddling by the courts claim to an end in 1937 when in the so-called "Judicial Revolution", the Supreme Court, in a series of cases, finally decided to get out of the business of invalidating legislative action in the economic sphere.  Hammer v. Dagenhart was overruled, although Lochner technically never was.  But Lochner in particular came to be regarded on the same level as the Dredd Scott decision as a monumental misstep in constitutional interpretation.

There have been a few people such as Richard A. Epstein, allegedly a legal scholar, who have gone about saying that Lochner and Dagenhart were properly decided.  Listen to Epstein, whose Wikipedia entry betrays no sign of ever having worked as a 12 year-old child in a factory, or worked for 60 hours a week in a bakery, pining for the good old days of child labor:

[A] similar [Congressional] scheme was used to rein in child labor within the states (which had their own child-labor laws) by refusing to let any firm that used child labor anywhere in its operations to ship its goods into interstate commerce. Firms that produced most of their goods for sale outside their home state were forced to capitulate to the federal standard.

That decision was struck down in Hammer v. Dagenhart on the basis that the regulation of manufacture, as of 1918, was still within the exclusive power of the states. The connection between the commerce power and the spending power was made clear some four years later in the Child Labor Cases that held, sensibly enough, that Congress could not tax the goods shipped in interstate commerce by firms that used child labor anywhere in their production. Set that tax high enough and it becomes tantamount to a ban.

As you might guess, this sort of voodoo thinking is popular with people like the Koch Brothers who run the Cato Institute as well as the state of Wisconsin through their sockpuppets.  

Next week the court will hold extensive oral argument on the Affordable Care Act.  Epstein and Mario Loyola, a frequent National Review contributor, have written a friend of the court brief (.PDF), where they define their issue as "Whether Congress has the power under Article I of the U.S. Constitution to require individuals to purchase health insurance."  

Just a scan through the authorities shows some of our good old friends from the history of the commerce clause, including Hammer v. Dagenhart, and the nightmare of every whackadoodle New Deal-hating conservatives, Wickard v. Filburn (1942).  By the way, another case, largely forgotten now except by the whackadoodles, is Champion v. Ames, (1903), which held that Congress could ban interstate transport of lottery tickets.  And here's the Epstein / Loyola love letter to Dagenhart, from page 19 of the brief:

The expansionist effort to use the federal commerce power to gain control over purely intrastate commerce came to a temporary halt in Hammer v. Dagenhart, 243 U.S. 342 (1918), where the Court, again by a five-to-four vote refused to extend Champion.   Hammer barred Congress from enacting a child labor law that prohibited the shipment in interstate commerce of any goods made in factories that did not conform to the 14-year-old federal minimum age standard for child labor. Once again, it was clear that Congress could not use its power over interstate commerce to control activities that were reserved to the States under the original constitutional scheme. Moreover, as direct regulation was off-limits to the federal government, so too was taxation. Four years later, the Child Labor Tax Cases, 259 U.S. 20 (1922), held that Congress could not seek to pressure the States by taxing interstate trade in goods made in factories that employed child labor. The basic constitutional structure held firm.
Lochner is nowhere mentioned in the brief, but its spirit is there, as Epstein and Loyola go on and on, largely without any legal authority, about the horrors that will ensue if the individual mandate is not stricken down, and in so doing they argue that much of the New Deal was unconstitutional.  Presumably (although they are silent on this) that would include Social Security as well.  

But no matter how Epstein and Loyola dance around the issue,ultimately the stench of Lochner and Dagenhart will cause SCOTUS to uphold the law, and it will not be a close vote.  The moment that Epstein and Loyola claimed that Dagenhart was properly decided was the moment their case was lost.

Originally posted to Plan 9 from Oregon on Sun Mar 25, 2012 at 08:23 AM PDT.

Also republished by Community Spotlight.


Epstein and Loyola argue that Congress has no power to regulate child labor. Are they right?

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Comment Preferences

  •  damn activist judges (5+ / 0-)

    great diary.

    This Rover crossed over.. Willie Nelson

    by Karl Rover on Sun Mar 25, 2012 at 08:47:20 AM PDT

    •  Love that "economic liberty"! (3+ / 0-)
      Recommended by:
      palantir, Karl Rover, caul

      You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

      by Cartoon Peril on Sun Mar 25, 2012 at 08:52:14 AM PDT

      [ Parent ]

    •  hope you are right (3+ / 0-)
      Recommended by:
      Native Light, caul, Losty

      I do think the conservative majority of the court wants veto power over legislation, so if embracing Lochner is the way to do it, I think they very well might.  From what I see, the conservative majority has no regard for stare decisis.  And after Bush v. Gore, it is hard to ascribe intellectual or judicial honesty to them in any way.

    •  This diary was a good introduction (1+ / 0-)
      Recommended by:
      Cartoon Peril

      into an issue this lawyer never thought would be revisited.

      Every lawyer of a certain age remembers those creepy Federalist Society meetings.  Most of my fellow students laughed at them.

      I am not laughing now.

      This is a golden chance for the right to begin the slow march to finding the New Deal and the Great Society unconstitutional.  You don't do that in one case.  You start with a case like this, and then slowly you expand the limits of Federal power.  It will take decades.

      But it has been underway for a while, and I think it will continue.

      The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

      by fladem on Mon Mar 26, 2012 at 08:32:16 AM PDT

      [ Parent ]

  •  Federalism is pretty much dead (6+ / 0-)

    in practice but not in the text of the Constitution. Can we agree that the legal environment would be clearer if we had a constitution with more explicit language, based upon a couple centuries' experience, that defined powers to regulate commercial activity within a state?

    That said, labor regulation doesn't seem to correspond directly with requiring every adult human being to buy a private product. While it is tempting to add this power, I don't think it falls under the definition of regulating commerce, and we may be sorry later when the federal government forces people to buy other things.

    The answer to not having the power to mandate is to offer a tax-funded public program.

    Government and laws are the agreement we all make to secure everyone's freedom.

    by Simplify on Sun Mar 25, 2012 at 08:54:34 AM PDT

    •  Federalism gets bigger or smaller depending on (5+ / 0-)
      Recommended by:
      palantir, StrayCat, caul, FG, Betty Pinson

      what one wants.  For example, NRA wants to force the states to adopt national reciprocity for concealed handgun permits.  Where's the federalism there?  Or DOMA, which stripped from states their traditional role of defining marriage.

      If we go back to the Dredd Scott days, one sees that it was a deeply anti-state's rights decision.

      You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

      by Cartoon Peril on Sun Mar 25, 2012 at 09:06:41 AM PDT

      [ Parent ]

      •  answers, respectively: (2+ / 0-)
        Recommended by:
        VClib, Jerry J

        Laws re guns are permissible under the 2nd and 14th amendments.  Re sons: it doesn't preclude states from defining marriage, it only controls for federal statutes.  The other section codified the longstanding public policy exception to full faith & credit.

      •  "Federalism" doesn't get bigger or smaller (3+ / 0-)
        Recommended by:
        Cartoon Peril, StrayCat, caul

        What changes is the proportion of power held by the states in relation to the federal government and vice versa.

        More to the point of your diary, perhaps the most important part of it, to my mind, is how you correctly describe the laissez faire days of the Supreme Court as "judicial activism."  You could toss in "will of the people" to add to the right's use of language to twist reality into what they want it to be.

        Take my vote for granted at your peril.

        by VetGrl on Sun Mar 25, 2012 at 12:21:07 PM PDT

        [ Parent ]

    •  You're perfectly free (7+ / 0-)

      under the ACA not to buy health insurance if you are willing to pay more taxes. The incentive to buy health insurance is economic, not forcible. And the economic incentive is not disproportionate.

      •  Economic punishment is forcible (3+ / 0-)
        Recommended by:
        johnny wurster, hmi, Jerry J

        Proportional punishment is still punishment.

        A "tax" that only applies as "incentive" for not doing something is an extrajudicial fine, not a tax.

        It would be like requiring people to buy fruit at the grocery store. If they don't, their taxes go up, but that's not punishment, see?

        The ultimate question: what happens if one doesn't pay the "tax?"

        Government and laws are the agreement we all make to secure everyone's freedom.

        by Simplify on Sun Mar 25, 2012 at 10:54:22 AM PDT

        [ Parent ]

        •  I don't think you'll succeed (4+ / 0-)
          Recommended by:
          Cartoon Peril, StrayCat, caul, Cedwyn

          in distinguishing this conduct-based tax result from others. For example, if I rent instead of buy, I am economically disadvantaged by the federal tax code because I can't write off part of my living expenses like the buyer can (with the home mortgage interest deduction). Or, to put it in your terms, everyone is "forced" to buy houses, and if they refuse and rent instead, they are "punished" by paying extra taxes.

          Phrasing something as a tax penalty vs. the denial of a tax deduction is mathematically meaningless. Our conduct determines tax consequences all the time.

          •  The difference is punishment for inaction (3+ / 0-)
            Recommended by:
            hmi, MsLillian, Jerry J

            The person who takes out a home mortgage spends money and takes financial risk, and the government incentivizes that person with a tax subsidy. The person who rents isn't taking that same risk. The person who spends little or nothing on housing — the person who is married to a homeowner but maintains separate finances and files taxes separately, the person who crashes on a relative's or friend's couch, the person who is homeless — isn't punished by the tax subsidy for others. That person didn't take a risk on a loan and didn't spend on housing. It's not punishment for that person to not receive a tax subsidy.

            In the case of the Patient Protection and Affordable Care Act, the person who doesn't take action sees his or her taxes raised. That is an extrajudicial fine, levied just because one is alive and doesn't do something the government demands.

            If Obama and Congressional Dems had wanted to pass a tax subsidy for people who buy health insurance and then raise taxes overall to pay for it, sure, they could've done that. You say it's mathematically equivalent, but it's a much different political question. That matters.

            That's not what the law did. Instead, they just raised taxes on people who don't do anything, on people who refuse to buy a private product. That, I believe, is beyond the power of Congress.

            Government and laws are the agreement we all make to secure everyone's freedom.

            by Simplify on Sun Mar 25, 2012 at 03:03:30 PM PDT

            [ Parent ]

            •  The difference is punishment..... (1+ / 0-)
              Recommended by:
              Jerry J
              That's not what the law did. Instead, they just raised taxes on people who don't do anything, on people who refuse to buy a private product. That, I believe, is beyond the power of Congress.
              I so agree your statement here Simplify....not only in regards to this health care plan but I wonder what this or any future administration may force us to buy.

              "A senseless tragedy remains forever tragic, but it's up to us whether it remains forever senseless - Robert Brault

              by MsLillian on Sun Mar 25, 2012 at 05:49:51 PM PDT

              [ Parent ]

            •  Once you agree that a mathematically equivalent (0+ / 0-)

              scheme is constitutional then I'm sorry, but your argument has collapsed. Political differences between mathematically equivalent taxing statutes are not unconstitutional.

              •  Guess again. (1+ / 0-)
                Recommended by:
                pee dee fire ant

                You couldn't be more wrong.

                One scheme that brings in revenues of, say, $1 Million dollars is Constitutional - another that brings in the same is un-Constitutional.

                And, your argument is that since both bring in the same revenue, both are legal?

                That's brilliant legal logic there!

                •  No, you are not understanding me. (0+ / 0-)

                  I am saying that if one statute imposes a certain tax liability on a person as a direct result of that person's conduct, but it is framed as "denial of a tax deduction," and that if another statute imposes exactly the same tax liability for exactly the same conduct, but it is framed as an "excise tax," there is no constitutionally relevant difference.

                  Before passing judgment on the brilliance of legal arguments, you would be well served to take the time to understand them.

      •  Sorry, I just have to add (4+ / 0-)
        Recommended by:
        zedaker, VClib, hmi, Jerry J

        how authoritarian this argument is.

        "You're perfectly free to do something that then causes the government to force you to pay more."

        That is the opposite of "free." "Free" would mean being able to make the choice without cost or consequence from the government, as in without a mandate. Also, it's literally not free — it costs money!

        This argument reminds me of a time when a protester spoke up at a talk Alberto Gonzales was giving, and then as the police dragged the protester off to jail, Gonzales praised America's freedom of speech.

        Government and laws are the agreement we all make to secure everyone's freedom.

        by Simplify on Sun Mar 25, 2012 at 11:05:36 AM PDT

        [ Parent ]

      •  It's not a tax - it's a penalty (0+ / 0-)

        That's what they will decide on, at least.

        And, I believe the court will, correctly, decide it is not a tax.

    •  Single payer would have been a better idea! (4+ / 0-)

      But it was not doable in 2008-09. However, if the Court invalidates ACA and the results in November 2012 bear out the polling and Democrats' renewed heartfelt warmth for health care/insurance reform ...

      Obama and strong Democratic majorities in 2012!

      by TRPChicago on Sun Mar 25, 2012 at 02:28:49 PM PDT

      [ Parent ]

      •  It wasn't "doable" because they didn't try (5+ / 0-)
        Recommended by:
        hmi, Jerry J, jeopardydd, Betty Pinson, Losty

        That's self-fulfilling prophecy. Obama dealt away the public option, never mind single payer, from the get-go. And he broke campaign promises and did it behind closed doors and denied that it happened, when during the campaign he said he'd change the way Washington works and put the negotiations on C-SPAN.

        Political infeasibility of a good idea doesn't mean one should pull an unconstitutional trick in order to make it "feasible" and get it passed, especially when that trick, if upheld, validates further federal exercise of power beyond what the social contract provides.

        Not attacking your statement; just pointing out related matters.

        Government and laws are the agreement we all make to secure everyone's freedom.

        by Simplify on Sun Mar 25, 2012 at 03:10:56 PM PDT

        [ Parent ]

        •  and other related matters (1+ / 0-)
          Recommended by:

          isn't the whole point of all of this to push, agitate and fight for what we want?  so why did the activist community abandon pursuit of single payer just cuz washington said no?  since when do we roll like that?  only on health care, apparently, was the activist community comfortable with status quo and crumbs out of d.c.

          we should have been demanding single payer from rooftops everywhere.  but we didn't.  those of us who pushed for that got shouted down.

          Never forget that the Republican War on Women originated with religion; the GOP is but theocracy's handmaiden.

          by Cedwyn on Mon Mar 26, 2012 at 05:36:22 AM PDT

          [ Parent ]

    •  It certain does seem to be regulation of interstat (1+ / 0-)
      Recommended by:
      Cartoon Peril

      commerce.  There is a national health care and health insurance industry that is subject to regulation.  The activities of those paritcipating in it (e.g., those receiving health care) clearly a) are part of that national, interstate economy and b) are having an impact on it.  Therefore, that conduct, as part of the interstate economy, is regulable.  

      It isn't a great solution, but where a persons conduct shapes and distorts interstate commerce, Congress would have to have authority to regulate it in order to regulate commerce.

  •  easy answer: no. (1+ / 0-)
    Recommended by:

    This case is about limits of enumerated powers, not individual rights.  This fad has absolutely nothing whatsoever to do with Lochner.

  •  Why the amicus brief focus? (4+ / 0-)
    Recommended by:
    Cartoon Peril, StrayCat, davis90, Jerry J

    Seems a bit much to pin the ultimate defeat of the health care challenge on one of a couple hundred amicus briefs.

    Overall, there's certain an aura of lets-return-to-Lochner pervading the opponents argument, but I'm not sure its quite fair to characterize the main argument as invoking Lochner as precedent (even implicitly) for striking down the bill.

    The main problem is that, aside from this not being a substantive due process challenge, the respondents aren't challenging the substantive provisions of the ACA as regulating non-interstate commerce as in Dagenhart. Rather, they are saying that the individual mandate is beyond the scope of the commerce power or the Necessary and Proper clause.

    Thus, what we're really looking at is an attempt to add a new restriction on the CC and/or N&P clauses ala Lopez, Morrison, and the Comstock dissent.

    •  Those were the same issues as in Dagenhart (1+ / 0-)
      Recommended by:

      and the rest of the child labor cases.  Dagenhart is simply the offspring of Lochner, rephrased to fit the commerce clause, but  the goal is the same thing, that is, to set up the Supreme Court as a third branch of the legislature -- but only when it comes to opposing progressive leglslation.

      You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

      by Cartoon Peril on Sun Mar 25, 2012 at 12:37:11 PM PDT

      [ Parent ]

      •  Eh, not really (0+ / 0-)

        Dagenhart was a commerce clause case (unlike Lochner), yes, but the issue was still not the same.

        The issue there was that the child labor laws were tied to manufacturing, which was said to be outside the scope of the CC because it took place before anything entered interstate commerce.

        Here, there's no challenge to substantive provisions on the theory that they regulate something outside of interstate commerce. Rather, the challenge, at least to the individual mandate, is based upon the notion that this is regulating something that isn't commerce at all ("inactivity") or alternatively that the regulation is being done in an impermissible way (through an "unprecedented" mandate").

        While these theories are similar in that they both ultimately say that the challenged regulation is outside the scope of the CC and N&P clause, the challenge is based very differently, and the state and private respondents both frame the issue very differently than the issue in Dagenhart.

  •  85% of legal (2+ / 0-)
    Recommended by:
    Cartoon Peril, Mindful Nature

    scholars believe it will be upheld. Predictions range from a 5-4 decision to uphold to an 8-1.

    And don't say we are in uncharted waters with this case. 2/3 of legal scholars predicted the Citizens United result correctly. So they know how these judges think.

    People panic too much on this site.

    by thematt523 on Sun Mar 25, 2012 at 02:06:54 PM PDT

    •  There is no way this law will be struck down. (1+ / 0-)
      Recommended by:

      Roberts will not want to be known as the modern McReynolds.

      You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

      by Cartoon Peril on Sun Mar 25, 2012 at 02:11:17 PM PDT

      [ Parent ]

    •  What about Bush v. Gore? (1+ / 0-)
      Recommended by:

      I remember explaining to friends and family that the chance of the Supreme Court granting cert to review a state supreme court's decision interpreting state election law was next to none.   It just wasn't done.  And look what we got instead.  A bunch of nonsense from the court and Bush as the president.  I don't think the court cares about precident.  The conservatives will do what they want to do.  

      •  Are you a legal scholar? (0+ / 0-)

        If you are not, your opinions mean nothing. If you are, almost everyone disagrees with you.

        People panic too much on this site.

        by thematt523 on Sun Mar 25, 2012 at 03:17:13 PM PDT

        [ Parent ]

        •  This comment is either snark or despicable. (0+ / 0-)

          Government and laws are the agreement we all make to secure everyone's freedom.

          by Simplify on Sun Mar 25, 2012 at 03:34:42 PM PDT

          [ Parent ]

        •  I am just a lawyer (0+ / 0-)

          I don't spend my days on Supreme Court precedent.  That is for deeper thinkers than me.

          As for everyone disagreeing with me.  I guess you studied Bush v. Gore and thought it made some sense.  Not to me.  All I saw was a pure power grab.  It was such unadulterated nonsense that the court actually told lower courts that the decision was not to be followed.  

          I don't see that the current conservative majority in the Supreme Court has any particular respect for stare decisis.  Not when they want a different outcome.  If "almost everyone" disagrees with me on that, I guess I am an uniformed maverick.

          •  I guess you are (0+ / 0-)

            But you are clearly one of the 15%. I didn't say every single legal scholar agreed. Just that close to everyone does.

            And yes, Bush v. Gore could easily be considered a power grab. But two of those justices are gone, including the chief justice at the time. But if they make new precedent on this, it will have far-reaching consequences way beyond just that law. Bush v. Gore only decided a single election. An important one, but a single one nonetheless.

            Besides, Ryan's budget has an individual mandate. Do GOPers really want to render their own policies unconstitutional?

            People panic too much on this site.

            by thematt523 on Sun Mar 25, 2012 at 08:19:19 PM PDT

            [ Parent ]

            •  I appreciate the analysis in this diary (1+ / 0-)
              Recommended by:
              Cartoon Peril

              I accept the fact that you know these justices better than me.  It probably is useful to study them enough to discern their judicial philosophy.  But once a court heads down the path it did with Bush v. Gore, it's hard not to disregard the details of the analysis and just assume that the opinions are basically determined by the desired outcome.  I know it was 12 years and two justices ago, but I don't really think Alito and Roberts are any better than Rehnquist and O'Connor.  

              I guess the question is whether Kennedy will be concerned about precedent.  I can accept that he is better than the others.  I once worked for a judge who knew him well and thought he was the cat's meow.  But from my relatively uninformed view, there have been a lot of straight up power grabs that he has been in on too.

              As for whether the conservative majority would set up a rule that they wouldn't want to live with?  I think  these justices are fully capable of splitting a hair to distinguish a precedent when the need arises.

              I hope you and the other 85% are right.  Maybe I shouldn't be so cynical about the court.  But I am.

          •  I agree with you (0+ / 0-)

            Read Plains commerce bank v Long Family Land and Cattle. Compare it to Montana.  (This was a case about when a tribe has jurisdiction over people coming onto reservations to do business.)

             Ostensibly that case applied the longstanding precedent of Montana, which was a slam dunk (all courts below had ruled for the Indians).  Yet, the Supreme Court ruled against them.  How did they reach that decision?  The majority simply changed the language of the Montana opinion when they quoted it so that it suited the outcome they wanted.  they didn't even make a pretense of overturning it or applying it in some way.  Nope, they just edited the text, and went on applying their "revised" precedent.

            Yeah, zero respect for precedent here.

      •  The tell in that case (5+ / 0-)
        Recommended by:
        Native Light, caul, FG, thematt523, Cedwyn

        was that the ruling said not to use the case as precedent. In a judicial setting, that's an open admission of a fiat ruling.

        Government and laws are the agreement we all make to secure everyone's freedom.

        by Simplify on Sun Mar 25, 2012 at 03:19:26 PM PDT

        [ Parent ]

    •  Got a cite (0+ / 0-)

      for your assertion?

      The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

      by fladem on Mon Mar 26, 2012 at 08:34:05 AM PDT

      [ Parent ]

    •  Said the same about Bush v. Gore n/t (0+ / 0-)
  •  Affordability? sure. (0+ / 0-)

    it doesn't appear to look like it is in anyway going to make health care affordable for the part of  middle America that makes above several times the poverty scale . Those Americans can expect that anumber of them will have to shell out around 10% of their gross income (not even net) a year just to have coverage.

    Calling this legislation the "Healthcare Affordability act" is just more of a never ending stream of more government doublespeak.

    innocence is lost and a certain wisdom gained when one comes to the realization that often in real life situations there are no good guys versus bad guys, just bad guys versus even worse guys.

    by GeeBee on Sun Mar 25, 2012 at 08:09:05 PM PDT

  •  Insightful analysis...great diary. (1+ / 0-)
    Recommended by:
    Cartoon Peril

    "When fascism comes to America it will be wrapped in the flag and carrying a cross." - Sinclair Lewis

    by Bob Duck on Sun Mar 25, 2012 at 08:18:38 PM PDT

  •  9-0 upholding the ACA. (2+ / 0-)
    Recommended by:
    Cartoon Peril, Losty

    The showy four days of oral argument are met with a unanimous court.

    Don't let all the bafoons who have appeared on Fox News crying about "unconstitutionality" fool you, this is one of those easy 9-0 decisions that the Supreme Court loves to put out to show "solidarity" on an "important issue of the day."

    The cases were only brought because stupid Republican legislators used the "unconstitutional" argument in fighting the bill during the legislative process. They had thus boxed themselves in to going through with frivolous judicial challenges.

    (I hate to even write it here as it is so obvious, but holding the ACA unconstitutional would mean the eventual end of Medicare, Social Security and half-a-thousand other exceedingly important federal laws and regulations, and half-a-thousand more slightly less important federal laws and regulations.).

    Republicans, like Zombies, just want to get a head.

    by Tortmaster on Sun Mar 25, 2012 at 09:58:13 PM PDT

  •  My Constitutional law professor (2+ / 0-)
    Recommended by:
    Cartoon Peril, Mindful Nature

    in law school told us that if we cite Lochner on the final as any sort of authority for anything, we will get an automatic "F" in the class, because that would mean that we didn't understand anything Con Law.

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