Philosophical "conservatism" on today's Supreme Court has nothing to do with constitutional method. It does not mean that the Justices defer to Congress or the states. It does not mean respect for precedent or existing doctrine or the original meaning of constitutional language. All it means is that the five Justices who imposed Citizens United on our country find a way to line up with the political arguments being advanced on Fox News, by the Heritage Foundation and by the most right-wing forces in the Chamber of Commerce. This is a Court that isn't just dominated by the politics of the Republican Party; this is a Court dominated by the politics of the Tea Party. What an embarrassment.
The Supreme Court's performance on the bench in the health care case last week is instructive. The remarkable thing is that everyone, including the conservatives, concede that the mammoth health care industry, which represents one-sixth of our national economy, substantially affects interstate commerce. This is all that needs to be shown under the 1995 U.S. v. Lopez decision, which found that Congress under the Commerce Clause can regulate the channels of interstate commerce, the things moving in interstate commerce, and any activity that has a "substantial effect" on interstate commerce. With 40 million uninsured people whose uncompensated health care costs the rest of us billions of dollars a year, it's a simple case. This is why intellectually honest conservatives, like my first-year Contracts professor, Charles Fried, a serious conservative at Harvard Law School who was President Ronald Reagan's Solicitor General, are declaring that the current constitutional attack on Obamacare is "just a canard that's been invented by the tea party, and I was astonished to hear it coming out of the mouths of the people on the bench."
In truth, this has nothing to do with the Commerce Clause. What right-wing conservatives are saying now is that the individual insurance mandate (which they concocted at the Heritage Foundation and put into practice in Massachusetts under Governor Romney, all with the enthusiastic support of Newt Gingrich) goes "too far." It threatens a "fundamental shift in the relationship between government and the individual." It actually "makes people do something." It forces people to "enter into a contract."
No, these "don't tread on me" arguments have nothing to do with the Commerce Clause and everything to do with the revival of the 1905 Lochner v. New York decision. In Lochner, a similarly Right-leaning Supreme Court struck down a law regulating the working hours and condition of bakeshop employees in New York. The theory was that the Due Process Clause creates a sacrosanct invisible shield around business and employment contracts that cannot be pierced by economic and social legislation. For decades the Lochner Court proceeded to wipe out legislation regulating child labor, occupational safety, the right to organize, collective bargaining, and consumer rights, all in the name of protecting the Due Process freedom of contract. Justices would give the thumbs-up or thumbs-down depending on whether they felt a law had gone too far in regulating commercial activity. The Court's self-appointment as a super-legislature reviewing the wisdom of laws affecting business provoked the famous political clash with President Roosevelt, who advanced a plan to change the composition of the Court. Although FDR did not succeed in changing the size of the Supreme Court, the Court did change its ways and abandon the radical doctrine that government could not regulate private contracts affecting employment and consumer rights.
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. Just last Term, Justice Breyer dissented sharply in Sorrell v. IMS Health, Inc. (2011), in which the conservatives invalidated on free speech grounds Vermont's Prescription Confidentiality law, which provided that health insurance companies and pharmacies could not, without doctors' consent, sell information to pharmaceutical companies about what drugs their patients were using and what illnesses they were facing. The majority ruled that this confidentiality protection violates the First Amendment rights of corporations involved in the buying and selling of patient information. Justice Breyer observed that the Court was using the First Amendment in the same way that the Lochner Court used Due Process: to strike down ordinary laws regulating economic life and business, shifting the locus of real power from the legislative branch to the judiciary. Justice Breyer, who has never been a Ralph Nader-style radical when it comes to consumer rights, admonished the Court for opening up a 'Pandora's Box':
Given the sheer quantity of regulatory initiatives that touch upon commercial messages, the Court's vision of its reviewing task threatens to return us to a happily bygone era when judges scrutinized legislation for its interference with economic liberty. History shows that the power was much abused and resulted in the constitutionalization of economic theories preferred by individual jurists.-- See Lochner v. New York, 198 U.S. 45, 75-76 (1905) (Holmes, J., dissenting).
The health care case threatens a full-blown revival of Lochner under the guise of the Court preventing some vaguely identified "overreach" by Congress under the Commerce Clause. This rhetoric is phony-baloney because the idea that government never forces anyone to do anything is laughable, as anyone who recalls the existence of military conscription, compulsory public education, and forced deduction of Social Security taxes might realize. It does not improve the new right-wing argument to say that the (Republican) individual insurance mandate is unprecedented or a radical break from prior tradition because it "forces people to buy something or to enter into a contract." That, too, is a familiar design for government laws, as you will know if you are forced to buy auto insurance in order to drive.
Indeed, most of the landmark Commerce Clause decisions that establish the lawfulness of Obamacare involved people being forced to enter into contracts they would have preferred not to enter. In NLRB v. Jones & Laughlin Steel Corp. (1937), the Court upheld Congress' power to pass the National Labor Relations Act, which forbade the dismissal of employees for organizing unions and forced business employers to rehire (and repay) workers who had been unlawfully fired for that reason. What is that if not forcing someone into a contract?
In Wickard v. Filburn (1942), the Court affirmed a $117 penalty imposed on an Ohio dairy farmer who harvested 16 bushels of wheat more than he was allowed to under a wheat harvesting quota set by the Agriculture Secretary under the Agricultural Adjustment Act of 1938. Filburn the farmer made an especially compelling case (and a far more sympathetic plaintiff than the politically driven AGs bringing the Obamacare suit), since the wheat he harvested went not to market but to feed his livestock and family and to create seed for planting. Yet Justice Jackson wrote for a unanimous Court that it was perfectly reasonable and valid under the Act to seek to increase the price of wheat by limiting the volume produced. Home-consumed wheat, he wrote, "would have a substantial influence on price and market conditions."
Even if the farmer's wheat never goes to market, Justice Jackson wrote, "it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market." In this sense, home-grown wheat "competes with wheat in commerce" by keeping people who would otherwise be consumers from purchasing wheat on the open market. That is, Congress essentially wanted to force people in Filburn's situation to go out and buy wheat. Furthermore, even if Filburn's individual "contribution to the demand for wheat may be trivial by itself," the key point from the Commerce Clause perspective is that "taken together with that of many others similarly situated," his contribution to demand "is far from trivial." This kind of analysis is what has given rise to the "aggregation" approach to analyzing the substantiality of effects on interstate commerce; what matters is not the economic effect on interstate commerce of a single actor who wants to opt out of a national regulatory scheme but the "aggregate" effect of all persons or businesses similarly situated. In the case of health insurance and uncompensated care, that aggregate effect is many billions of dollars a year.
Take the final example of the public accommodations provisions of the Civil Rights Act of 1964, which the Supreme Court upheld under the Commerce Clause in Heart of Atlanta Motel v. U.S. (1964). The Act compelled white restaurant, lunch counter and hotel and motel owners to serve and do business with African Americans and other racial minorities over their diehard opposition. In other words it forced people into business contracts. Similarly, Title VII of the Civil Rights Act forbids race and sex discrimination in hiring, thus forcing racist and sexist employers to hire people they would prefer not to.
Every case is different, and what lawyers get paid to do is distinguish this situation from that. But what has really changed today is the political culture of conservatism, which is so shameless that it can invent a health care policy -- the individual insurance mandate -- and promote it widely as the alternative to the clearly superior single-payer plan that prevails in most of the world, and then come back later and declare that the whole idea is really unconstitutional the minute it is adopted by a political opponent seeking a compromise with conservatives.
But, since everyone concedes that it relates to interstate commerce, if it is going to be struck down, the individual insurance mandate will have to be declared unconstitutional because government cannot go "so far." Yet, if government cannot go so far at the national level because it violates individual rights, surely it cannot go so far in Massachusetts, either. Does this mean that Romneycare in Massachusetts is unconstitutional, too? Will the Republican standard-bearer in 2012 have to run against the constitutionality of his own plan?
Wendell Potter: Hope the Supremes Strike Down ObamaCare? Get Ready for PanemCare
Dean Baker: The Supreme Scream: Obamacare After the Court Ruling
Michael L. Millenson: GOP to Uninsured: (Feel Free to) Drop Dead
The laws had no such intent. The intent of those laws is most accurately stated as to improve the political position of progressives, by favoring special interests at the expence of the public
Lochner (the specific case) was about a coelition of union and big business bakers trying to precent smaller mostly immigrant bakers from selling bread at competitive prices with union bakers.
http://libertylawsite.org/post/rehabilitating-lochner-a-law-and-liberty-symposium/
Lochner was an immigrant from Bavaria who worked for a number of years as a baker before opening a small bakery,, Lochner was on friendly terms with his workers, whom he labored alongside, and on occasion allowed them to work extra hours in violation of New York’s law. Small family bakeshops often kept odd hours, which allowed for much idle time, as bakers waited on the dough, or other elements of the production process: “A ten-hour law . . .would drive out of business many old-fashioned bakeries that depended on flexible labor schedules”. Thus larger bakeries—often supported by the baker’s union—stood to benefit from that law at the expense of smaller bakeries.
What the conservative justices were trying to get at was the question "where is the outer-most reaches of the Commerce Clause?" Is the federal government's reach just shy of criminalizing domestic violence? Or is it well short of that? Or, as Breyer would have it, can the federal government assert that everything touches commerce and therefore domestic violence can be made a federal crime?
I don't think it's just two blocks though. I think it is a continuum from Thomas to Breyer with everyone else somewhere in the middle.
Oh Horror!!!! 5 Justices who said "No" to arguments by the Obama administration that although banning movies on pay per view was not Constitutionally different than banning books, that book bans would be Constitutional if part of campaign finance law are now lining up with the Heritage Foundation to strike down programs largely designed by the Heritage Foundation. I smell a set-up.
I find it hard to believe that you are truly a professor of law and have put your reputation on the line by publishing such terrible drivel.
It is no secret that conservatives, particularly in the tea party, want to reach back in time and undo the social legislation of the New Deal. That's fine, and it's a political opinion to be fought at the ballot box. But now we know that the US Supreme Court agrees and is willing to ignore 80 years of precedent to get there. This IS new and dangerous ground. You may disagree, but I think that's the point this author is trying to make.
Embarrassment is the fact that the author of this crap can be employed as a law professor. First, Lochner v. New York, as the case name implies, has nothing at all to do with the current case before the Supreme Court. It was a 1905 decision applying the individual liberty rights under the Fourteenth Amendment to strike down a state regulation, specifically a maximum hours law applied to bakers, which had been passed by New York at the urging of a Bakers' Union with the intent of driving small family-owned bakeries out of business. If the Professor is so certain Lochner was a really bad decision, then he ought to be attacking the liberals on the Court who decided Roe v. Wade and Lawrence v. Texas. I could go on about the Schecter Poultry case, which was about the limits of the Commerce Clause, but why bother. It's not as if actual facts could ever get in the way of a liberal's opinions.
Cases upholding the draft, or upholding Title II or Title VII of the Civil Rights Act of 1964, clearly are distinguishable from the current challenge to the individual mandate of PPACA. Similarly, the author's argument that if the federal government cannot impose an individual mandate then a state cannot do so ignores the difference between the federal government's claimed basis for the power to impose that mandate (the Commerce Clause) and a state's basis for doing so (the Police Power inherent to a state).
As a law professor, the author should be aware that in numerous areas of law the decisions of both lower courts and the Supreme Court tend to be somewhat like a pendulum that swings back and forth. For example, the Warren Court recognized or expanded many "rights" that previously had not been recognized or had been severely constrained. The Burger, Rehnquist and Roberts Courts have eliminated or curtailed many (if not most) of the rights recognized or expanded by the Warren Court. It is my sincere hope that this process will swing back the other way, hopefully sooner rather than later.
Albert Florence was mistakenly arrested for an unpaid fine related to a traffic charge. With no suspicion that he was actually hiding anything noted by officers, he was strip-searched - twice.
To quote from the Chicago Sun-Times: "Justice Anthony Kennedy said the circumstances of the arrest were of little importance. Instead, Kennedy said, Florence’s entry into the general jail population gave guards the authorization to force him to strip naked and expose his mouth, nose, ears and genitals to a visual search in case he was hiding anything. 'Courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security,' Kennedy said." WAKE UP, AMERICA.
This has come to be true for all parts of our government, it no longer serves "The People" and Corporations are not People.
In a democracy like ours the People are supposed to be vigilant and look after their own interests, but they are not fulfilling their Constitutional duties and so they are going to suffer greatly, my own disappointment at the American People is too vast to contemplate. They have been deluded and trick with "Social Issues" which allowed the Corporate regime to take over.
America has failed, its going to be difficult, if not impossible, to pull back into democratic territory after the last 30 years of this Corporate assault on Democracy. Things like the Patriot Act is what the court should be rejecting...
This is all about optics.
President Obama is OUR guy, not THEIR guy.
Anything they can do to hurt his administration, even if it involves hurting the people, in fair game.
Party over Country.
This very court asserted that Corporations are People.
Then the converse, people are corporations, stands to reason.
If mandates upon corporations stand, so, too, must mandates upon people.
Insurance Companies don't make their money on Health Care, they make it on Life Insurance, Car Insurance and Home Owners Insurance. They make the money by figuring out the odds of you using that insurance and charging you accordingly, then by investing the premiums and making a great return on the investment. Health care Insurance is the least profitable of all the Insurance Sold. Health Care Insurance is the only insurance sold that is guaranteed to be used. To reduce the lose, Insurance Companies sell Health Care Insurance as often as possible as Group Plans. Some people in the Group cost the Insurance Company more money than they take in, in premiums, other don't. My wifes medications alone are more than my premiums. Two large Insurance Companies have dropped Health Care Insurance in the last two years anticipating even larger losses when Obamacare is fully implemented.