Bernstein Discusses Role of Lochner in Health Care Debate

In a guest column appearing in Jurist, Professor David Bernstein argues that striking down the individual mandate of the Affordable Care Act does not suggest a resurgence of the 1905 Supreme Court ruling in Lochner v. New York.

Bernstein suggests that before the New Deal a variety of provisions and doctrines limited the government's power to regulate the economy. However, during the Great Depression and World War II there was a growth in government accompanied by the Court's retreat from anti-regulatory precedents.

"For a variety of reasons, including mere happenstance, Lochner eventually became the shorthand for the pre-New Deal Court's purported malfeasance," says Bernstein.  

"In the end," Bernstein says, "the individual mandate's fate will turn on whether the Supreme Court's conservative majority is willing to hold, against the great weight of textual and historical evidence, that the Commerce Clause gives the federal government virtual plenary power over the economy. And that has nothing to do with Lochner."

The Role of Lochner in the Health Care Litigation, Jurist, March 21, 2012. By David Bernstein.

"For decades, liberal jurists have argued that the revival or development of any constitutional doctrine that limits economic regulation would herald a return to the so-called 'Lochner era.' With conservatives in control of the Court for the last two decades, liberal justices have attacked their colleagues for aping Lochner in cases that invoked the First Amendment, the Commerce Clause, the Takings Clause, the Tenth Amendment, and the Eleventh Amendment to limit the government's regulatory authority.

"Ironically, meanwhile, the liberal justices themselves have expanded the scope of the Due Process Clause — the clause actually relied upon in Lochner — on behalf of the Progressive agenda. For that very reason, conservatives accuse their liberal adversaries of being the true heirs to Lochner.

"It is unsurprising then that many of the individual mandate's defenders want to analogize the plaintiff's challenge to Lochner. Simon Lazarus, a prominent ACA defender, bizarrely argues that invalidating the mandate would 'restore Lochner — letter, spirit, the whole nine yards.'"

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