Worse Than Lochner
Ian Millhiser* Introduction There is an alternate universe where everything violates the Tenth Amendment—and much of Congress lives in it. Senator Tom Coburn believes that all federal education programs, from Pell Grants to Title I to student loans, violate the Constitution.1 Senator Rand Paul thinks that the federal ban on whites-only lunch counters is forbidden.2 Senator Mike Lee believes that child labor laws, federal disaster relief, food stamps, the Food and Drug Administration, Medicaid, income assistance for the poor, and even Medicare and Social Security violate the Constitution.3 And, of course, half Congress thinks that health reform is unconstitutional. Surely it cannot be the case that nearly 100 years worth of major legislation violates the Constitution? And yet, there is a growing movement on the American right that believes just that. Part I of this Essay begins in familiar territory: the battle over the Commerce Clause. It explains how the ubiquitous lawsuits challenging the Affordable Care Act4 (ACA) are animated by the same interpretative methodology that characterized the infamous Supreme Court decision concerning child labor laws, Hammer v. Dagenhart—a methodology which allows judges to *
Policy Analyst, Center for American Progress. The author is grateful for helpful comments from David Fontana, Kent Greenfield, Simon Lazarus, Sonja Ralston, and Adam Winkler, and for editorial assistance from Ali Frick and Chris Suarez. Ian Millhiser, Coburn Channels Failed Tenther Candidates Who Claim Department of Education Is Unconstitutional, ThinkProgress (Dec. 7, 2010, 7:30 PM), http://thinkprogress.org/2010/12/07/coburn-education-dpmt/. Ezra Klein, Rand Paul May Not Be a Racist, but He Is an Extremist, Ezra Klein (May 20, 2010, 10:16 AM), http://www.voices.washingtonpost.com/ezra-klein/ 2010/05/rand_paul_may_not_be_a_racist.html. Ian Millhiser, Mike Lee Suggests FEMA, Federal Poverty And Food Safety Programs Are All Unconstitutional, ThinkProgress (Jan. 19, 2011, 4:08 PM), http:// thinkprogress.org/2011/01/19/mike-lees-katrina/. Affordable Care Act § 1501, 26 U.S.C.A. § 5000A(a) (West 2010).





edu/supct/html/historics/ USSC_CR_0247_0251_ZO. 100. as reprehensible as child labor is. available at http://www. 8.edu/supct/html/93-1260 .edu/supct/html/historics/ USSC_CR_0312_0100_ZO. Lopez6 and United States v. a legal theory that would strike down the ACA bears no resemblance to the much more modest limits on congressional power outlined by modern cases such as United States v. See United States v. not by Members of Congress.S. 6. including many current Members of Congress.law.html (“The conclusion is inescapable that Hammer v. The Essay concludes by briefly exploring why the emergence of these unusual constitutional views among elected lawmakers is sadly likely to influence judicial decisions in the future.5 As this Part makes clear. . so it passed a law—no more child labor.8 Consider the words of Senator Lee embracing Hammer. Reviving Hammer The many lawsuits challenging the ACA are merely the tip of a spear aimed at Congress’s larger ability to regulate the national economy. available at http://www.html.law. cases like Hammer and the two recent district court decisions striking down the ACA have no grounding in constitutional text.S. 247 U.law. 116-17 (1941). Dagenhart. as it then had has long since been exhausted. as a precedent. 251 (1918). the discredited Supreme Court decision outlawing federal child labor laws: Congress decided it wanted to prohibit [child labor]. Medicare. Indeed.edu/supct/html/historics/ USSC_CR_0529_0598_ZO. 51 . In that case. want to revive a 230-year-old constitutional “ghoul” which would so completely eviscerate federal power that even the Lochner-era Supreme Court unanimously decided that it must remain buried.WORSE THAN LOCHNER impose novel and extra-textual limits upon Congress’s enumerated powers. and as much as it ought to be abandoned—that’s something that has to be done by state legislators.html. Under these conservatives’ vision of congressional power. This may 5. and Pell Grants would all cease to exist. a handful of sitting members of Congress openly admit their desire to restore overruled precedents that long ago entered the constitutional anti-canon. the Supreme Court acknowledged something very interesting—that. available at http://www.html.”). Darby. 312 U. 514 U. 7. Part II dives even further back into constitutional history.S. Medicaid. available at http://www. It explains that a growing number of prominent conservatives. The Supreme Court heard a challenge to that and the Supreme Court decided a case in 1918 called Hammer v. Morrison. 598 (2000).cornell.cornell. Hammer is emblematic of this group of cases. .S. I.cornell. cherished federal spending programs such as Social Security. 529 U. . Dagenhardt [sic].7 Unlike Lopez and Morrison. [sic] was a departure from the principles which have prevailed in the interpretation of the Commerce Clause both before and since the decision and that such vitality.cornell.law. 549 (1995).ZO.

10. Rather. social connection. and is regulated by prescribing rules for carrying on that intercourse.S. or conversation”).13 Lochner-era Supreme Court decisions drastically reduced the legal meaning of the word “commerce” to exclude “[t]he making of goods and the mining of coal.”12 This distinction is important for two reasons. available at http://thinkprogress. and movements back and forth. Hammer. 15-16 (2010) (explaining that “intercourse” includes “interactions.S.com/scripts/getcase. Remarks in Draper.pl?court=us&vol=22&invol=1 (“Commerce. 247 U.” to “regulate and protect the instrumentalities of interstate commerce. Congress had not passed a nationwide ban on child labor as Lee suggested. 549. United States v.YALE LAW & POLICY REVIEW INTER ALIA 29 : 50 2011 sound harsh. it would have upheld the law as within Congress’s power to “regulate the use of the channels of interstate commerce. Senatorial candidate Mike Lee. is traffic. It was designed to be a little bit harsh. and parts of nations. 109 Mich. Congress had restricted the interstate transport of goods that had been manufactured through the use of child labor.10 As explained by the Lopez Court. See Gibbons v. undoubtedly. Id. for example. 251.9 Of course. First. 2010) (alteration in original). available at http://caselaw. it is worth noting that there is a significant factual error in Lee’s description of the statute at issue in Hammer. Rev. or persons or things in interstate commerce. 14. few elected officials who expect to remain in office will so candidly express a desire to see federal child labor laws struck down.”11 Had the Supreme Court applied this contemporary doctrine to the law at issue in Hammer. 11. Dagenhart. 268 (1918). 558-59 (1995).”).) 1. Hammer v. 514 U.S. in all its branches. contemporary Commerce Clause doctrine permits Congress to “regulate the use of the channels of interstate commerce.findlaw. Utah (Jan. L. while the Commerce Clause was originally understood to encompass a broad array of economic and non-economic matters.S. Jack M. but it is something more: it is intercourse. including. 189-90 (1824). 22 U. It describes the commercial intercourse between nations.” rather than considering whether child labor itself “substantially affect[s] interstate commerce. A. 52 . Lopez. 247 U. but a brief examination of Hammer and other cases from the Lochner era reveals striking similarities between Lochner-era Commerce Clause doctrine and the constitutional arguments now being advanced by health reform’s opponents. travel.org/2011/01/14/lee-child-labor. Ogden. Hammer’s Folly At the outset.lp. at 272. 4. Balkin. interrelated activities. 1. exchanges. 13. Commerce.” and to regulate matters that “substantially affect interstate commerce. 12. despite this artificial limit on the 9. but it was designed to be that way.”14 Yet. (9 Wheat.

227 U.findlaw. . . may prohibit the carrying of lottery tickets from one State to another. . and. or alcohol—from interstate commerce.justia. and Clark Distilling.17 It permitted Congress to ban interstate transportation of prostitutes in Hoke v. For example.”). . the Court believed.) at 197 (“[T]he sovereignty of Congress.S. . . for the purpose of guarding the morals of its own people.18 And Congress was allowed to restrict the sale of alcohol that traveled in interstate commerce in Clark Distilling Co. . . Dagenhart. the Court upheld a law in Champion v. United States. Hammer v. Hammer should have been an easy case. See Gibbons. available at http://supreme. Because Congress did nothing more than ban the transport of a particular object—no different than lottery tickets. Md. the like facility can be taken away from the systematic enticement to and the enslavement in prostitution and debauchery of women. forbid all sales of lottery tickets within its limits. See id. however.. 15. more insistently.20 Such an aim. of girls.S. Hoke.”). Instead of following these established precedents. Western Maryland Railway. 251.pl ?court=US&vol=188&invol=321. and among the several States. Congress’s plenary authority15 to regulate the channels of interstate commerce—including the power to prohibit certain persons or goods from travelling in interstate commerce—remained mostly intact when Hammer was decided in 1918. Because the law at issue in Hammer “aim[ed] to standardize the ages at which children may be employed in mining and manufacturing within the States. 53 16.”). Co.S.S. 188 U. 22 U. so Congress.19 Given these precedents.S. 308. the power over commerce with foreign nations. 327 (1917). v. v.”). W. (9 Wheat. 311. available at http://caselaw. 321 (1903).html (“In view of the conceded power on the part of Congress to prohibit the movement of intoxicants in interstate commerce.com/cgi-bin/getcase. 322 (1913). 247 U. is vested in Congress as absolutely as it would be in a single government . is plenary as to those objects. Clark Distilling Co. we cannot admit that because it did not exert its authority to the full limit .com/us/227/ 308/case. the Supreme Court could have upheld the law in a one-sentence order citing Champion. the Court invented an entirely novel limit on the commerce power. 19. 17. could be pursued only within the police power of the state government. 20. Ry. 18. 272 (1918). 242 U.justia.html (“[S]urely if the facility of interstate transportation can be taken away from the demoralization of lotteries . though limited to specified objects. Ames16 blocking the transportation of lottery tickets in interstate commerce. for the purpose of guarding the people of the United States against the ‘widespread pestilence of lotteries’ and to protect the commerce which concerns all the States. available at http://supreme.com/us/242/311/case. at 357 (“As a State may. prostitutes.WORSE THAN LOCHNER commerce power.” the Court deemed it an impermissible attempt by Congress to regulate by indirect means something that it could not regulate directly.lp. Congress exceeded its authority to regulate.

161 (1908). Recall that the Lochner-era Court believed that the commerce power did not encompass “[t]he 21. 54 . Ogden.S. which denied Congress that power when it was turned against employers.justia. Disturbingly. Judge Roger Vinson suggested that the opposite is true. Id. 295 U. at 346 (“The fact that the compulsory scheme is novel is. Throughout this era. 26. 100. see id. which all permitted Congress to regulate the channels of commerce. Darby. no evidence of unconstitutionality.21 the commerce power. United States. available at http://supreme. HHS.25 Likewise. at *72-73 (Jan. (9 Wheat. 898. in Adair v. 25. United States. the Justices invented exceptions to longstanding legal doctrines in ways that benefitted management and hurt labor. may be exercised to its utmost extent.. While Alton expressly disclaimed any suggestion that a law is more likely to be unconstitutional if it is in some way unique. 2011 U. and Clark Distilling. 31.YALE LAW & POLICY REVIEW INTER ALIA 29 : 50 2011 Beyond these precedents.) 1 (1824).24 the Court effectively created a labor unions exception to Congress’s authority over the channels of commerce. Hoke. U.S. 521 U. 27. 24. the Hammer decision cannot be reconciled with the very first Supreme Court decision examining the commerce power. 22 U. See id. at 374.justia. striking down a law that protected railroad and shipping workers’ right to organize. United States v.S. 22. available at http://supreme. The contrast between Champion. in Railroad Retirement Board v.27 While the Justices were busy excluding labor protections from Congress’s authority over interstate commerce. Alton Railroad Co.html. “like all others vested in Congress. 908 (1997))). at 196.com/us/295/330/.26 the Court broadened this exception to forbid Congress from providing retirement security to workers within the channels of commerce.23 and that includes the power to ban the fruits of child labor from commerce among the several states. 330 (1935).com/us/208/161/case. As Chief Justice Marshall explained in Gibbons v. For example. is complete in itself. they just as willingly shaped doctrine to ensure that laws benefitting management remained intact.”). see Florida v. No. 312 U.S. at 178 (“[W]hat possible legal or logical connection is there between an employe’s [sic] membership in a labor organization and the carrying on of interstate commerce?”). of course. Dist. was only one example of the Lochner-era Court’s manipulation of its own doctrines. Id. Congress must have the complete power to regulate those.”22 Because the Commerce Clause gives Congress the power to regulate the channels of interstate commerce.S. and acknowledges no limitations. 2011) (“[A]n ‘absence of power’ might reasonably be inferred where—as here—‘earlier Congresses avoided use of this highly attractive power. LEXIS 8822. Alton was in some ways a more moderate opinion than a recent district court decision striking down the ACA. 905.S. and Hammer. 3:10-cv-91-RV/EMT. 208 U.’” (quoting Printz v.S. other than are prescribed in the constitution. 23. 114-17 (1941).

in judicial interpretation of any law—is that the judges will mistake their own predilections for the law. Rather. 310 (1925). the sole restraints on which they have relied. 197 (1824) (“The wisdom and the discretion of Congress. See Gibbons v.”28 Yet.”).WORSE THAN LOCHNER making of goods and the mining of coal. in this. 57 U. Originalism: The Lesser Evil. and then attaching multiple. 247 U. 295. and the influence which their constituents possess at elections are. United Mine Workers v. to secure them from its abuse. 55 31.S. conservatives have highlighted this compelling need to check judicial authority in order to attack decisions they view as too disconnected from constitutional text. however. conservatives are now departing en masse from Scalia’s admonition that a judge’s first duty is to refrain from acting like a legislator. They are the restraints on which the people must often rely solely. 272 (1918). Dagenhart. 29. for example. the Lochner-era Court’s greatest sin was not that it preferred management to labor. judges who exercise unbridled discretion have lost sight of their fundamental role. Ogden 22 U. Indeed. The Court’s actions would have been no less inappropriate had the Court invented extra-constitutional limits on federal power when Congress sided with management. For much of the last several decades. the Justices behaved as legislators. when mine owners invoked a federal law to suppress a mining union’s cutthroat tactics. 849. Chief Justice Marshall recognized that the electorate’s power over the elected is the most important shield against overuse of Congress’s commerce power. they can vote them out of office. and created exemptions to those limits when Congress sided with labor. Hammer v. the Court decided that the commerce power allowed Congress to reach mining workers after all. the Justices ceased to behave as judges who acknowledge that their discretion is bound by law. Antonin Scalia. equally extra-constitutional caveats to these doctrines. “The main danger in judicial interpretation of the Constitution—or.) 1. 863 (1989). the greatest sin of this era was that. their identity with the people.29 Lest there be any doubt.30 Because federal judges are ultimately unaccountable to the electorate. B. as in many other instances. Rev. in all representative governments. Like Lochner28. L. (9 Wheat. Hammer’s Revenge The many legal challenges to the ACA rely on an interpretative method that is indistinguishable from that used in Hammer and similar cases. As Justice Scalia warns. Coronado Coal. Cin. 30. by inventing novel doctrines with no grounding in constitutional text or history.”31 As the next Section explains. Legislators enjoy far greater discretion than judges because their actions are bound by much stronger restraints: If the voters disapprove of elected lawmakers.S. 268 U. of declaring war. 251.S. for that matter. In other words. . Fidelity to a legal text is a judge’s only binding chain—the only restriction that ensures the essential distinction between courts and Congress. as that.

“[t]he federal government does not have the power to regulate Americans simply because they are there. 271 (1848). 1 Stat. 561 F. Rivkin. The principal assault on the ACA targets its minimum coverage provision. Williams.) at 196.38 In fact.html.com/wp-dyn/content/article/2009/ 08/21/AR2009082103033. 26 U. other than are prescribed in the constitution”32. 619 (11th Cir.S. 35. ACA’s opponents refined their argument to claim that their novel interpretation that would limit laws compelling activity only applied to Congress’s commerce power. 245 U. 16. § 5000A(a) (West 2010).washingtonpost. the Militia”39—that required individuals to purchase a specific product: The Second Militia Act of 1792.C. unquestionably constitutional laws that compel passive individuals to take action. See Selective Draft Law Cases.S. signed by President George Washington. U.A. just after the Constitution was ratified. & Lee A Casey. 39. 2009). 366. In their original formulation. (9 Wheat.”34 As the government explains in its briefs defending the ACA. 40. Affordable Care Act § 1501. See United States v. 271. Congress has enacted numerous.YALE LAW & POLICY REVIEW INTER ALIA 29 : 50 2011 era federalism decisions. 34.36 It may compel individuals to pay taxes. these challenges not only depart from Chief Justice Marshall’s holding that Congress’s commerce power “acknowledges no limitations. Congress may compel sex offenders to register with local officials after they move into a new jurisdiction. 750 (8th Cir. art.3d 615. 37.S. ch.S. 1206 (11th Cir. Hart. 701 F. Department of Health and Human Services: 32.33 One of the earliest published attacks on this provision. Ambert. Const. which requires most Americans to either carry health insurance or pay slightly higher income taxes. and disciplining. 22 U.37 And it may require non-custodial parents to pay child support. 33. 38. Post (Aug. 1997).3d 1202. 121 F. United States v. 22. cl. 2009). Jr.2d 749. United States v. Wash. Illegal Health Reform. they also spin complex webs of exemptions and caveats to their extra-constitutional limits on federal power. Congress enacted a law— admittedly pursuant to its power to “provide for organizing. 56 . § 1. 33. Second Militia Act of 1792.35 It may conscript unwilling civilians into military service. § 8. available at http://www. 36. however. According to the original complaint in Florida v. I. written by two of the leading attorneys challenging the law several months before the ACA even became law. suggested that it must be invalidated because the Constitution prohibits government from forcing passive individuals to take a particular action. required free men to purchase firearms and other military equipment. 1983) (deeming an individual’s claim that he was immune from income taxation to be frivolous). For example. 390 (1918). David B. arming. Gibbons.40 To distinguish those laws.

43.cornell. 241 (1964). Dist.html. available at http://www. § 8. 2010).law.com/us/91/367/case. that “in order to facilitate 41. Katzenbach v. Supp. 379 U. cl.D.edu/supct/html/historics/USSC_CR_0379_0241_ZS. “voluntarily placed themselves within the stream of interstate commerce. U. 304-05 (1964).WORSE THAN LOCHNER The Act is directed to a lack of or failure to engage in activity that is driven by the choices of individual Americans. available at http://myfloridalegal. 57 42. 2011).S.S.html.google.S. yet the Supreme Court unanimously determined that the commerce power authorized Congress to force them to conduct business against their will.S.nsf/WF/MRAY-83TKWB/$file/ HealthCareReformLawsuit. available at http://www. Const. Cuccinelli v. Complaint at 19.edu/supct/html/historics/USSC_CR_0379_0294_ZO. § 8. 2d 768.. the Court held in Luxton v. Id. 367. the ACA’s opponents now argue that Congress may indeed use its commerce power to compel action. Virginia ex rel. see also Heart of Atlanta Motel v.S. U.justia. in the words of one of the two judges who struck down the law. United States. that Congress cannot wield its commerce power to require an individual to “engage in activity. Such inactivity by its nature cannot be deemed to be in commerce or to have any substantial effect on commerce. but this power only extends to individuals who. 728 F. 44. 372 (1875). 379 U. 779 (E. the ACA’s opponents provided additional caveats to their legal rule.”45 Yet even this caveated claim runs headlong into precedent. available at http://supreme .”42 The owners of whites-only lunch counters wanted nothing more than to refrain from engaging in activity with African-American patrons. No. Dep’t Health and Human Servs. United States.pdf.law.41 It is simply untrue. Despite the fact that the text of the Constitution grants Congress the power to “regulate Commerce”44 and not simply the power to regulate the persons presently engaged in commerce. McClung. As a result. Va. 91 U. I.S.com/webfiles.html (holding that the Constitution allowed Congress to require private hotel operators to serve black patrons). LEXIS 8822 (Jan. 294. Sebelius.cornell.com/scholar_case?case=5603040913273999931&hl =en&as_sdt=2&as_vis=1&oi=scholarr. Const. The Supreme Court held more than a century ago in Kohl v. . 46. however.”46 Shortly thereafter. 2011 U.. whether interstate or otherwise. 45. United States that Congress may invoke the power of eminent domain “so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution. 3. 3:10-cv-91-RV/EMT. available at http://scholar. art I. North River Bridge Co. the Act cannot be upheld under the Commerce Clause. 31.43 To escape this precedent. art. Kohl v. Florida v.

The genius of the legal arguments against the ACA.justia. as captured by Vinson’s opinion. 271. 48.D. See Katzenbach v. In striking down the minimum coverage provision earlier this year. 53.. 2011).. as Vinson’s opinion illustrates. 2011 U.52 This process of starting with a clean legal rule and then attaching caveat after caveat to distinguish away inconvenient precedents is—to again quote Justice Scalia—delightful “intellectual fun. Scalia quite correctly warns that a judge’s discretion must be checked by more than his ability to articulate a reason.html. 54.”48 leaving readers to guess what obvious point of distinction they are missing. LEXIS 8822 at *73. simply proclaimed that Luxton and Kohl are “obviously distinguishable. Dist. Second Militia Act of 1792. no matter how spurious.49 but this rule only applies to people who are not already engaged in the stream of commerce. See Luxton.com/us/153/525/case. § 1. Florida v. at *73 (N. 534 (1894). Jan. Florida. . 153 U. No.S.”53 but it is emphatically not the role of a judge in a democracy.S.”47 No precedent exists suggesting that a landowner’s property is immune to condemnation simply because he did not voluntarily put it within the stream of interstate commerce. at 9. McClung. North River Bridge Co. Dep’t of Health and Human Servs. Any attempt to summarize its holding results in an impossibly caveated mess such as this: Congress may not use its commerce power to require an individual to engage in a financial transaction. at 534. Vinson exceeded Scalia’s worst fears. 2011 U. lands for the construction and maintenance of the bridge and its approaches . Unsurprisingly. that explains why one of these things is not like the other.S. ch. See id. 49. 153 U. this devolves into a largely incoherent project. Fla.S.YALE LAW & POLICY REVIEW INTER ALIA 29 : 50 2011 interstate commerce. while leaving constitutionally similar laws—such as the ban on whites-only lunch counters or Congress’s power to condemn land—intact. . 1 Stat. 58 Luxton v.” Congress may “condemn[] .S. 52. Vinson could not even articulate a 47. 294. U. even though it may use its other enumerated powers to require individuals to buy products against their will. Dist. LEXIS 8822. no judge has even attempted to explain why the compelled sale of land is materially distinguishable from the compelled purchase of health insurance. 31. . 3:10-cv-91-RV/EMT. 304-05 (1964). . 33. 525. 379 U. 51. 271 (1848). Judge Roger Vinson. .54 Indeed.S. . without citing any authority whatsoever. Antonin Scalia.50 and it doesn’t apply to Congress’s eminent domain power51 for reasons that should be so obvious to you that you must not dare to ask. 50. A Matter of Interpretation 7 (1998). is that they construct a rule that fingers just one provision of the United States Code—the ACA’s minimum coverage provision—as unconstitutional. available at http://supreme.

Senator Lee’s affinity for Hammer and his fellow conservatives’ near-universal belief that the ACA violates the Constitution are something entirely different from the much more modest. But at least the Hammer Court attempted to explain its reasoning. § 8. while civil penalties for violence against women are out. striking down a prohibition of guns in school zones and a portion of the Violence Against Women Act as exceeding Congress’s commerce power.. the activity in question has been some sort of economic endeavor. federalism-driven theory that the Supreme Court’s conservative majority embraced in Lopez and Morrison. 58. cl. Morrison. (9 Wheat. Lopez. Lopez and Morrison account for the requirement that Congress actually regulate “commerce” by creating a distinction between laws regulating economic activity and those which target merely non-economic matters.”57 Both Lopez and Morrison connect the scope of the commerce power to these two textual limits. 55. C. other than are prescribed in the constitution”).) 1.S. The words “regulate commerce . . it is important to acknowledge that neither Hammer nor the legal arguments against the ACA bear any resemblance to limits on the commerce power laid out in modern Supreme Court cases like Lopez and Morrison. 611 (2000) (“Lopez’s review of Commerce Clause case law demonstrates that in those cases where we have sustained federal regulation of intrastate activity based upon the activity’s substantial effects on interstate commerce.59 So child labor laws are in. any limits on Congress’s enumerated powers must be found within the text of the Constitution itself. at 60 (“‘Where economic activity substantially affects interstate commerce. in Chief Justice Marshall’s words. 22 U.S. See United States v. and yet he still claimed the power to strike down the act of democratically elected lawmakers by fiat. See Gibbons v. (9 Wheat. As Chief Justice Marshall explained in Gibbons. Hammer may have been wrong. economic regulation is far more likely to fit within Congress’s commerce power than laws that merely touch on non-economic matters. “concerns more States than one. 549. Gibbons. 22 U. U. 578.S. Lopez. Morrison and the Text of the Constitution As a final note. See id. 560 (1995))). . It may have departed wildly from established precedent. Ogden.S. 514 U.WORSE THAN LOCHNER constitutionally significant reason why the ACA can be distinguished from eminent domain. 197 (1824) (holding that Congress’s enumerated powers “acknowledge[] no limitations. Const.55 Two such limits can be found in the text of the Commerce Clause. 59.58 Under this framework. 3. 57. legislation regulating that activity will be sustained. 529 U. 59 56.”). Vinson’s opinion is even more illegitimate than Hammer.S. art I.’” (quoting United States v.” and only such commerce that.) at 194. among the several states”56 permit Congress to regulate only “commerce. . In this sense.

) at 194. both highlight historical evidence that the word “commerce” was not originally understood to encompass a distinction between economic and non-economic regulation.S. ‘commerce’ did not have such narrowly economic connotations. the Lopez and Morrison Courts deserve credit for announcing a legal rule that is plausibly connected to the text of the Constitution. at 613. America’s Constitution: A Biography 107-08 (2005) (arguing that the Commerce Clause empowers Congress to regulate “all forms of intercourse in the affairs of life.S. Likewise.”61 There is a wealth of literature criticizing these two opinions. for example. And yet. however. which are not prohibited. Instead. Nothing in the word “commerce” suggests that there is a “fruits of child labor” exception to Congress’s authority to regulate the channels of commerce.65 A law governing the entire national health care market clearly concerns “commerce” that takes place in more than one state. Akhil Reed Amar. the new wave of conservatism represented by the ACA lawsuits would divorce constitutional doctrine entirely from constitutional text. (4 Wheat.S. Gibbons. 62. see Section I.64 it also defies the plain constitutional text. Unlike the modern federalism doctrine embraced by the Supreme Court’s conservative majority in Lopez and Morrison. See Balkin. See supra note 23 and accompanying text. ‘commerce’ meant ‘intercourse’ and it had a strongly social connotations [sic]. 60 . supra note 13.YALE LAW & POLICY REVIEW INTER ALIA 29 : 50 2011 Additionally.) at 196 (holding that the commerce power “is complete in itself. . 421 (1819) (“Let the end be legitimate. [and] may be exercised to its utmost extent”). shrinking federal power far more than 60. and all means which are appropriate. (9 Wheat. 65. Maryland. The text of the Constitution contains no inactivity exception to Congress’s plenary authority to regulate interstate commerce. 61. 22 U. whether or not narrowly economic .” (emphasis added)). (9 Wheat. Hammer.B. Senator Lee and Judge Vinson’s visions are fundamentally different from anything the Court has embraced for over three generations. let it be within the scope of the constitution. Id. Gibbons. [I]f a given problem genuinely spilled across state or national lines. . 17 U.62 At the very least. however.63 and a law regulating a nationwide labor practice unquestionably concerns more states than one. as the next Part explains. Professors Jack Balkin and Akhil Amar. Gibbons. are constitutional. fails this test. which are plainly adapted to that end. modern Commerce Clause doctrine casts a relatively skeptical eye upon “regulation of intrastate activity”60—a limit consistent with Marshall’s warning that interstate commercial regulation must “concern[] more States than one. see also McCulloch v.”). Congress could act”). 64. 22 U. (9 Wheat. 63.) at 197. Judge Vinson’s hyper-caveated activity/inactivity distinction is not only wholly inconsistent with precedent.S. but consist with the letter and spirit of the constitution. by contrast.) 316. 22 U. at 5 (“In the eighteenth century.

the Supreme Court unanimously rejected an attempt to place crippling limits on a separate enumerated power. Indeed. granting Congress authority to “provide for the . YouTube.WORSE THAN LOCHNER even the Lochner-era Justices believed acceptable is only a small part of these activists’ agenda. art. art. U.S. . I. e. Mar. but if we meant that you can do anything.html (concluding that Congress’s spending power “is not limited by the direct grants of legislative power found in the Constitution”). at 66 (holding that the taxing and spending power’s “confines are set in the clause which confers it. See U. or to take actions expressly authorized by some other part of the Constitution. 67. Senator Paul and many of his fellow conservatives believe that Congress’s power to collect taxes and “provide for the common defense and general welfare of the United States” really only enables Congress to build post offices or fund wars. Butler.69 According to this view. I. many Members of Congress want to relitigate this decision. Madison’s Ghoul As the previous Part explained. congressional Republicans released a “Pledge to America.justia. § 8.”66 in United States v. why would we have listed the enumerated powers? Really the Welfare Clause is bound by the enumerated powers that we gave the federal government. See. available at http://supreme.g.” which broadly outlined their plans for governing if they were to prevail that 66. there is a General Welfare Clause.. . Senator Paul’s understanding of the Spending Clause is not simply the idiosyncratic view of an outlier senator. We The Interns clip 2 . who recently explained the origin of the increasingly common belief that Congress’s constitutional spending power is so small that it can be drowned in a bathtub: If you read [James] Madison. Madison will tell you what he thought of the Welfare Clause. 1. however. Const.com/us/297/1/case.Senators Rand Paul and MIke [Sic] Lee Discuss Their Legislative Ambitions.67 Today. 69. Lochner-era Justices were very aggressive in carving out extra-constitutional restrictions on Congress’s regulatory authority under the Commerce Clause. II. 61 68.S. 70. 297 U. 66 (1936). Yet.youtube . http://www. there is strong reason to believe that his view is shared by the majority of his caucus. Butler. 2011. Yeah. § 8. and not in those of § 8 which bestow and define the legislative powers of the Congress”). senatormikelee.com/watch?v=d7LI_76oawk&feature=relmfu. 297 U.S. 1. the spending power is not—as it is almost universally understood70—itself an independent enumerated power authorizing Congress to spend money. general welfare of the United States. . Const.68 In essence. He said. Consider the words of Senator Paul.S. cl. 11. In the lead-up to the 2010 midterm elections. even at the height of the Lochner era.

see also Butler.” I have always regarded them as qualified by the detail of powers connected with them.wikisource. 74.justia . available at http://en. J. dissenting) (explaining that the spending power stands “on a parity with the other powers specifically granted”). while the text of the Constitution establishes that “the exercise of the spending power must be in pursuit of ‘the general welfare. United States v. available at http://pledge. 73.75 Yet. 1831). Senator Paul is correct that it does have one very famous supporter. 20. 1.gop. Letter from James Madison to James Robertson (Apr. at 87 (Stone. at 65 (citing Madison’s belief that the Spending Clause “amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section”).gov/resources/library/documents/pledge/a-pledge-to-america . see also id. 483 U. Id.S. In an 1831 missive.S.76 71. 62 .’”74 neither Senator Paul nor the Pledge cite examples of laws that fail to meet this criteria.S. Dole. In its very first decision to examine the reach of the Spending Clause.YALE LAW & POLICY REVIEW INTER ALIA 29 : 50 2011 November. available at http://supreme.. the Supreme Court unanimously affirmed that “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution. while this narrow understanding of the spending power finds no support in the text of the Constitution or in the Supreme Court’s decisions. the question of what kind of government spending fails to advance the “general welfare” is sufficiently indeterminate that the Supreme Court views itself as largely incompetent to make such determinations. 297 U. courts should defer substantially to the judgment of Congress. A Pledge to America (2010). Butler. at 33. (“In considering whether a particular expenditure is intended to serve general public purposes. the lawmakers claimed that “lack of respect for the clear Constitutional limits and authorities has allowed Congress to create ineffective and costly programs that add to the massive deficit year after year.pdf. 76. Republican Majority in Cong. Indeed. 72.71 In it. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators. President James Madison claimed that the best way to read the Spending Clause is to ignore its literal meaning and impose an extra-textual limit on congressional power: With respect to the words “general welfare. 297 U. 75. 207 (1987).html.”). See id.73 Similarly.”72 This language suggests that many conservatives agree with Senator Paul that Congress is somehow exceeding its constitutional authority to spend money. But there is no support for this view in constitutional text or in Supreme Court precedent..org/wiki/James_Madison_letter_to_James_Robertson.” as Senator Paul would claim. South Dakota v. 66 (1936).com/us/483/203/case. 203.

having made it. and what is the fairly understood meaning of those words.”77 Indeed. Rev.archive. “I am aware that the document must speak for itself. which. H. available at http://web. 1826). 98 Harv. 87 (alteration in original)). 10. 1830). by failing to use their amending power) the American people had for two decades accepted” the First Bank. Justice Scalia.html. As the nation’s first Secretary of the Treasury. As the nation’s leading originalist. explains. 44. . 1996). President Madison signed into law an act creating the Second Bank. the President. at 940 (quoting letter from James Madison to Marquis de LaFayette (Nov.courttv. and (most important. 1816. For one thing. reprinted in 3 Letters and Other Writings of James Madison 538. 63 78. L. Like Scalia. and he viewed this acceptance as “a construction put on the Constitution by the nation. modern originalists largely reject the view that an individual framer’s intentions can change constitutional meaning. 266 (1850). and that that intention cannot be substituted for [the intention derived through] the established rules of interpretation. Although Congressman Madison opposed on constitutional grounds the creation of the First Bank of the United States. Madison rejected the notion that the framers’ personal desires can defeat the words they actually committed to text.”80 What’s more. reprinted in 4 Letters and Other Writings of James Madison 87. Address at the Catholic University of America (Oct. 3 Stat. if we must. Antonin Scalia. ch.”78 Madison even embraced an interpretative method reminiscent of the evolving theories of constitutional interpretation that are so widely decried by modern originalists.com/library/ rights/scalia. 77. 18. had the supreme right to declare its meaning. 542 (1865)). it becomes clear that Madison’s understanding of the spending power hardly reflects the consensus view among his fellow Founding Fathers. 936 (1985) (quoting Letter from James Madison to Martin Van Buren (July 5.WORSE THAN LOCHNER Senator Paul suggests that Madison’s extra-textual limit is both authoritative and binding—even if it means that programs ranging from Social Security to Medicare to Pell Grants must all cease to exist. The Original Understanding of Original Intent. the Supreme Court. “I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. 80.org/web/19980119172058/www. Powell. I take the words as they were promulgated to the people of the United States. 79. supra note 78. Madison’s chief antagonist in early debates about constitutional meaning was Alexander Hamilton. Madison himself would have been dismayed by the claim that an established understanding of the Constitution must bend to his own singular views. As he explained to future President Martin Van Buren. 885. It is a mistake to assume that Madison’s preferred construction of the Spending Clause must restrict modernday congressional action. as Senator Paul suggests. Jefferson Powell. Act of Apr.79 He “recognized that Congress. be bound by the Founders’ subjective intentions.

1966). 82. supra note 76. 303 (Harold C.81 Hamilton’s understanding of the spending power was one part of a broader.January 1792. because it was not fit that the constitutional authority of the Union.. 83. See supra note 79 and accompanying text.. Id. 86.YALE LAW & POLICY REVIEW INTER ALIA 29 : 50 2011 Hamilton offered an interpretation of the Spending Clause that closely resembles the modern understanding: These three qualifications excepted.86 81.82 This broader understanding of Congress’s role prevailed over Madison’s very limited one during the earliest days of the Republic. the power to raise money is plenary.” The terms “general Welfare” were doubtless intended to signify more than was expressed or imported in those which Preceded. See supra note 76 and accompanying text. 64 . at 97. Syrett ed. at 230. The phrase is as comprehensive as any that could have been used. See Alexander Hamilton. Hamilton was the chief advocate who convinced President George Washington to sign the First Bank bill over Madison’s objections. to appropriate its revenues shou’d have been restricted within narrower limits than the “General Welfare” and because this necessarily embraces a vast variety of particulars. in 10 The Papers of Alexander Hamilton December 1971 . Alexander Hamilton’s Final Version of the Report on the Subject of Manufactures. and the objects to which it may be appropriated are no less comprehensive. Syrett ed.84 Hamilton was undoubtedly correct that his own reading of the Spending Clause is more consistent with the Constitution’s text than the reading offered by Madison— Madison himself concedes as much85—but Madison was also correct to warn that the nation rejects a longstanding and widely accepted constitutional interpretation at its peril. which are susceptible neither of specification nor of definition.83 It is hardly necessary. to dismiss Madison’s tremendous contributions to constitutional interpretation in order to recognize why America should not relitigate a 230-year-old argument about the Spending Clause. 85. otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. 1966). 102-107 (Harold C. than the payment of the public debts and the providing for the common defense and “general Welfare. however. 84. supra note 81. Alexander Hamilton. in 8 The Papers of Alexander Hamilton February .July 1791. with Hamilton. more expansive vision of congressional power that also included a robust interpretation of Congress’s power under the Necessary and Proper Clause. and indefinite. Compare Letter from James Madison to James Robertson. Final Version of an Opinion on the Constitutionality of an Act To Establish a Bank.

1:41 PM). J. Just one year ago. This happened in no small part because conservative politicians lined up to appoint and confirm anti-Roe judges with the same near-unanimity with which they are now lining up to trumpet their passion for long dead federalism doctrines. See United States v. It is difficult to imagine any of these lawmakers appointing a Justice to the Supreme Court who disagrees with them on the constitutionality of the ACA. http://wonkroom. Lopez.. one of the nation’s leading conservative constitutional scholars promised to “eat a hat which I bought in Australia last month made of kangaroo skin” if the courts struck down the ACA. 15. 89. 592 (1995) (Thomas.90 Today. 4:40 PM).g. Scalia Slaps Down GOP’s Tentherism. Reagan’s Solicitor General Promises To ‘Eat A Hat Made Of Kangaroo Skin’ If Courts Repeal Health Law.org/2011/01/25/scalia-tentherism/. not one Justice has questioned what Justice Scalia recently told a gathering of Members of Congress: “It’s up to Congress how you want to appropriate. should such a lawmaker ever be elected to the White House. Roe v. and America has grown into the wealthiest and most prosperous nation ever to exist in the years since Congress enacted these programs. 2011. ThinkProgress (Jan. This desire will also factor into future debates over judicial appointments. conservative lawmakers almost unanimously agree that the law is unconstitutional..89 Today. 410 U. Four decades ago. Throughout this golden age. and federal student loans. basically. 25. http://thinkprogress. dissenting) (suggesting that Congress may not regulate “[a]griculture and manufacture”). 88. 133 (1973). Yet the fact that few sitting judges are prepared to return America to the constitutional dark ages today88 does not mean that the Supreme Court will not be eager to do so tomorrow. 2010. See. Medicare. Wade. e.”87 Conclusion This Essay quite consciously contrasts the emerging assault on congressional power with Justice Scalia’s views in order to emphasize how wildly people like Senator Paul or Judge Vinson have departed from even the conservative mainstream that existed before President Obama took office. 65 90. Ian Millhiser.WORSE THAN LOCHNER Millions of Americans depend upon programs like Social Security. Wonk Room (Apr.org/2010/04/15/fried-unconstitutional/. a lopsided 7-2 majority recognized a robust constitutional right to reproductive freedom. a judge or elected official’s position on Roe is almost a perfect proxy for their political ideology with respect to any number of contentious issues. Igor Volsky. 514 U.S. the GOP Pledge to America’s break with long-established Spending Clause doctrine strongly suggests that a broad array of elected conservatives are eager to impose new constitutional limits on Congress’s power to spend money. 549. .thinkprogress.S. If a radically antiquated view of the Commerce Clause takes on similar political significance and organizing power to conserva- 87. Likewise.

66 . they will be a long way toward rolling back much of the twentieth century—and eradicating much of American government as we know it.YALE LAW & POLICY REVIEW INTER ALIA 29 : 50 2011 tives.