Pablo Martinez Monsivais/AP - President Barack Obama gestures as he speaks at The Associated Press luncheon during the ASNE Convention on April 3 in Washington.
The historical analogy came easily to the former teacher of constitutional law.
“A law that was passed by Congress on an economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right?” President Obama told a gathering of newspaper editors last week.
Audio and transcript excerpts of the justices during arguments on the constitutionality of the 2010 health-care law’s individual mandate.
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Those who are not historians or recent law school graduates might miss the reference. So it is time to brush up on Lochner v. New York, a 1905 decision reviled enough to lend its name to an era of discredited Supreme Court rulings.
Some supporters of the Affordable Care Act saw an apparition in the Supreme Court’s arguments on the act, and recalled the days when the court struck down progressive economic regulations.
“The ghost of Lochner is alive and well on the Roberts court, which has been busily dismantling laws that stand in the way of total corporate freedom,” warned Jamin Raskin, an American University law professor and Maryland state senator.
But the utility of Lochner — which struck down a New York law that prohibited certain bakers from working more than 10 hours a day or 60 hours per week — is that it is an equal-opportunity offender.
Conservative former judge Robert H. Bork called the decision “the symbol, indeed the quintessence, of judicial usurpation of power.” At his confirmation hearing, Chief Justice John G. Roberts Jr. said that “you can read that opinion today and it’s quite clear that they’re not interpreting the law, they’re making the law.”
And Obama has had a Lochner thing for a while. As a senator, Obama said Lochner represented a series of rulings in which “the Supreme Court consistently overturned basic measures like minimum-wage laws, child-labor safety laws and rights to organize, deeming those laws as somehow violating a constitutional right to private property.”
Obama said Lochner had the same “judicial philosophy” as the most denounced court ruling in history, the 1857 Dred Scott decision that prohibited Congress from regulating slavery and reinforced the notion of slaves as property, not citizens.
“Over one hundred years after their predecessors issued the decision, Supreme Court justices of all ideological stripes use Lochner as an epithet to hurl at their colleagues when they disapprove of a decision declaring a law unconstitutional,” David E. Bernstein, a George Mason University law professor, wrote in his book “Rehabilitating Lochner: Defending Individual Rights Against Progressive Reforms.”
In its ruling, the 1905 court struck down New York’s Bakeshop Act, which limited the hours bakers could work. Joseph Lochner, a Utica baker, had been convicted of requiring his employees to work longer hours.
He challenged the constitutionality of the law under the 14th Amendment, which provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” The court agreed, finding a “liberty of contract” that disallowed New York’s attempt to regulate such working hours.
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