Monday, December 20, 2010

Health Care Reform Challengers Return to Lochner Era

Simon Lazarus, public policy counsel at the National Senior Citizens Law Center, writes in the National Law Journal today that challenges to health care reform harken back to an earlier era of judicial activism, the Lochner Era.

Lazarus writes that the challenges, which argue that Congress lacks authority under the Commerce Clause to enact the individual health insurance mandate, represent the same kind of activism we saw from the Lochner Court, which overturned hour legislation as interfering with liberty interests under the Due Process Clause.  The only difference: the constitutional basis of the challenge.

But some don't see it.  For example, Lazarus points out that Judge Vinson, who is handling the challenge in the Northern District of Florida by 20 Republican state attorneys general and governors, rejected an argument in his preliminary ruling on October 14 that the mandate violates due process.  This way of thinking, he wrote, was a relic of the Lochner Era.  Congress determined that the mandate was rationally related to a legitimate end and therefore did not violate due process.

But Judge Vinson also wrote that the mandate exceeded Congress's Commerce Clause authority, declining to extend the same kind of deference to Congress's judgment on its own authority.

Lazarus highlights the inconsistency:

Opponents' challenge to the federal provision stands or falls by the same logic, whether cast as a "fundamental" incident of due process or as an implicit carve-out from Congress' authority to regulate interstate commerce.  Slipping the inquiry from one constitutional shell to another should fool no one.  If conservative jurists invalidate this linchpin of the most important domestic legislation in perhaps half a century, they will restore Lochner--letter, spirit, the whole nine yards.


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