The Lochner Awards

Despite my pre-oral argument warning that Lochner v. New York really has nothing to do with the constitutionality of the individual mandate, Lochner has consistently arisen. Most prominently, of course, the President mentioned Lochner (and in a dubious context), but only after the Solicitor General raised it at oral argument, CJ Roberts parried, and Justice Sotomayer raised it again, not especially coherently.

Surveying some of the post-oral argument Lochner-related commentary, I hereby present The Lochner Awards in various categories noted below:

Weirdest and most conspiratorial use of Lochner “In continuing his attack on the Supreme Court on Tuesday, President Barack Obama made a mistaken reference to the Lochner decision–an error that suggests just how deeply Derrick Bell affected his thinking about the Court and the Constitution.”

Spookiest Lochner reference
Jamin Raskin, Huffington Post “The ghost of Lochner is alive and well on the Roberts Court” (someone call Bill Murray!)

Smelliest use of Lochner
Daily Kos: “the stench of Lochner and Dagenhart will cause SCOTUS to uphold the law”

Most “challenging” reference to Lochner
Attorney Bryan Caskey: “So if you come across anyone who tries to tell you that holding the ACA to be unconstitutional will be a revival of Lochner, ask them if they can explain the holding.”

Most Honest use of Lochner
Jonathan Cohn, New Republic: “But I’m pretty sure both Obama and his administration’s lawyer were saying something different, and broader, when they invoked Lochner: By invalidating the Affordable Care Act, the Supreme Court would be resurrecting a vision of constitutionally limited government that, quite rightly, went out of fashion a long time ago.” (Constitutionally limited government! The very idea is preposterous!)

Most Puzzled reference to Lochner
DailyGreg blog: “Lochner? Who the hell is Lochner?”

Disco Lochner “Now one thing that comes up several times is what I refer to as the Lochner ‘boogie man.'”

Most judicious comment about Lochner
Damon Root, Reason: “the legal challenge to the individual mandate has nothing whatsoever to do with overturning any New Deal era precedents”

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