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Will SCOTUS usher a return to the "Lochner era"?

Following three days of oral argument, the Supreme Court is poised to determine the constitutionality of the Patient Protection and Affordable Care Act. Although the Supreme Court may decide any number of legal issues, the most significant question before the Court is whether the so-called individual mandate is constitutional based on Congress' power to regulate interstate commerce.

Striking down the individual mandate raises two concerns. The first concern is that it may signal a return to pre-New Deal conceptions of federal power, when the federal government lacked sufficient power to stimulate the national economy and combat economic depression. We will let others address the first concern and instead focus on the second: that striking down the law may signal a return to the "Lochner era."

The "Lochner era" was a period in early 20th century American history during which federal courts routinely struck down laws on the basis of personal liberty and freedom of contract -- two concepts embodied in the guarantees of due process. The era derives its name from the infamous 1905 case of Lochner v. New York.

In Lochner, the Supreme Court considered, in its own words, whether a state maximum hour law "is a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family?"

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The Supreme Court in Lochner answered the question in the negative. To reach that conclusion, the Court dismissed the health and welfare purposes of the law as without "reasonable foundation," and reasoned that due process protects a worker's "right to purchase or to sell labor" -- even at his or her own peril. The Lochner decision marginalized the greater good in favor of individual economic rights.

Although different in many ways from Lochner (for example, Lochner considered constitutional limits on state power), the current debate over the individual mandate smacks of Lochner's reasoning. Opponents of the mandate define the limits of the federal commerce power in terms of individual economic liberty. They argue that requiring individuals to purchase a product (health insurance) forces them into the health insurance market. For this reason, opponents say, the mandate does not regulate commerce at all, but instead creates commerce by impermissibly intruding into individual decision-making.

To be sure, as opponents of the mandate argue, individual economic freedom is an important value. But to use individual economic freedom to define the limits of the commerce power, as Lochner used it to define the limits of the state police powers, may return us to the dark days of Lochner -- a time when courts, in the name of protecting individual economic liberty, largely stripped legislatures of their ability to address systemic problems through social welfare policies.

This type of reasoning has long been rejected. Indeed, by the late 1930s, the Supreme Court recognized that certain constitutional protections of individual economic liberty must give way, to some degree, in order to permit the government to address national problems. Consider the 1937 case of West Coast Hotel v. Parrish. In that case, the Supreme Court overruled an earlier precedent and upheld the constitutionality of a state minimum wage law. The Court found that in the face of society-wide health and welfare concerns, individual economic freedoms must give way to minimum wage laws. As the Court reasoned, given the dynamics of the workplace, individual "self-interest is often an unsafe guide, and the legislature may properly interpose its authority."

Now fast forward 80 years. In light of the healthcare crisis we confront today, striking down the healthcare law may require reverting back to Lochner era conceptions of the Constitution. Although opponents couch their arguments in terms of the Commerce Clause, many of their arguments rely on the Lochner-esque premise that individual economic liberty must trump government action to address significant health and welfare problems -- even those of a national scope.

We will wait and see whether the Supreme Court will return us to a bygone era.

Ms. Haramati, a graduate of New York University Law School, is a lawyer admitted to practice in New York. Mr. Zuckerman, a graduate of Cornell Law School, is a lawyer admitted to practice in Illinois.

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