Lochner in Today’s Oral Arguments

After all, what’s a controversial Supreme Court case without multiple gratuitous references to Lochner?  First, the SG:

And that is what is going on here, and to embark on — I would submit with all due respect, to embark on the kind of analysis that my friends on the other side suggest the Court ought to embark on is to import Lochner-style substantive due process.

Roberts shoots him down:

The key in Lochner is that we were talking about regulation of the States, right, and the States are not limited to enumerated powers. The Federal Government is. [Roberts might have added that it’s hard to have “substantive due process” without the due process clause]

But later Roberts add his own gratuitous reference to Lochner that undermines his previous point:

And it would be — it would be going back to Lochner if we were put in the position of saying no, you [Congress] can use your commerce power to regulate insurance, but you can’t use your commerce power to regulate this market in other ways.

Even later, Sotomayor makes yet another reference to Lochner, and, like the SG, somehow associates federalism considerations with substantive due process:

Well, that goes back to the substantive due process question. Is this a Lochner era argument that only the states can do this, even though it affects commerce? Cars indisputably affect commerce. So are you arguing that because the states have done it all along, the Federal Government is no longer permitted to legislate in this area?

For a short explanation on why the Justices are bringing up Lochner in a doctrinally irrelevant context, see my op-ed last week.

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