Reviving Lochner: Simon Lazarus Examines Conservatives’ Legal Attacks on Health Care Reform Law

December 20, 2010
Conservative jurists and legal academics have long railed against so-called "judicial activism," which they claim is defined as legislating from the bench, as opposed to interpreting the law. But Simon Lazarus, in an article for The National Law Journal, writes that if the conservative justices on the Supreme Court invalidate the health care reform law's individual coverage provision, which requires most Americans to maintain health care insurance starting in 2014, they will effectively revive "the doctrinal apparatus deployed a century ago to abort the modern American regulatory state."

In "Jurisprudential shell game," Lazarus, public policy counsel at the National Senior Citizens Law Center, writes:

Since Robert Bork, Edwin Meese, Antonin Scalia and their lieutenants founded modern conservative jurisprudence 30 years ago, its core watchword has remained invariant: abhorrence for "activist" judges who "legislate from the bench." To showcase their hostility to activism on the right as well as the left, court-focused conservatives have repeatedly denounced the 1905 U.S. Supreme Court decision Lochner v. New York. Lochner launched and has come to symbolize the notoriously anti-regulatory activism of the first third of the 20th century; the case held that maximum-hours regulation violated employers' and employees' "freedom of contract," a "right" that the five-justice majority divined in the Fifth and 14th amendments' ban on deprivation of liberty without due process of law. Bork called the ruling an "abomination." Meese agreed that the "activist Court of the Lochner era was as illegitimate as the Warren Court." More recently, Chief Justice John Roberts Jr., at his 2005 confirmation hearing, said, "Reading that opinion, it's quite clear that they're not interpreting the law, they're making the law."

One of the leading opponents of the health care law and its individual coverage provision, Virginia Attorney General Kenneth Cuccinelli (pictured), has promoted his efforts against landmark law, the Affordable Care Act (ACA), as aimed at limiting government "across the board," Lazarus writes.

Among Cuccinelli's efforts is his lawsuit, joined by other state attorneys general, against the health care reform law. (Cuccinelli is also promoting a constitutional amendment that would allow "any federal law or regulation" to be repealed "if the legislatures of two-thirds of the states voted to do so," as The New York Times reports.) Judge Henry Hudson, in a recent ruling in the case lodged by Cuccinelli, invalidated the individual coverage provision by relying, in part, "on a 1922 ruling, universally considered defunct for three-quarters of a century, that Congress lacked power to ban or discourage the use of child labor in manufacturing," Lazarus notes.

And U.S. District Court Judge Roger Vinson, presiding over the Florida Attorney General's challenge to the ACA, is so far "fervently" endorsing arguments against the individual coverage provision; primarily that it exceeds congressional authority pursuant to the Commerce Clause.

Lazarus, author of the ACS Issue Brief, "Mandatory Health Insurance: Is it Constitutional?," writes that while the Supreme Court has found that individuals have a "fundamental" right to refuse medical treatment, that right does not mean they are exempt "from paying Medicare taxes, thereby contributing to the Medicare insurance pool."

"If the right to avoid payment for treatment were constitutionally ‘fundamental,' then Medicare taxation would be vulnerable to due process attack, as would state mandatory insurance requirements like those enacted by Massachusetts in 2006," he writes.

Lazarus concludes:

Indeed, refusing to carry health insurance may not constitute a genuine liberty interest at all. Treating uninsured patients, as most hospitals are required by federal statute to do, shifts more than $40 billion in costs annually to providers and insured consumers, to the tune of more than $1,000 per family in increased premiums. As former Massachusetts Gov. Mitt Romney noted when signing the Massachusetts individual mandate: "A free ride on the government is not libertarian."

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.

[image via KentonNgo]