Constitution Daily

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Constitution Check: Is the Court going to take the country back to the “Lochner era”?

December 9, 2014 by Lyle Denniston


Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, explains Justice Stephen Breyer’s talk about the famous Lochner case on Monday, and why it casts a shadow after more than 100 years.


Justice Benjamin N. Cardozo



“Once we start down the road of saying Congress cannot tell even a private agency to go and make some standards, which we all know will be followed, once we start down that road there is no stopping place….It is exactly what Justices Cardozo, Hughes, Brandeis and Stone said in Carter Coal, the measure is the due process clause, and we’re all off on something of a wild goose chase…The only [case on due process] coming close [to this case] is Carter v. Carter Coal, which I always put in the same box as Lochner [v. New York]. Now, are we supposed to resurrect that?”


– Comments by Justice Stephen G. Breyer during Monday’s Supreme Court hearing on the constitutionality of a 2008 law that gave Amtrak, the operator of the nation’s passenger railroad trains, a share of the authority to set standards for the performance of that service. A federal appeals court had struck down that law last year, relying on the Supreme Court’s 1936 decision in the case of Carter v. Carter Coal Co.   The Carter decision nullified a New Deal-era law giving mining companies the power to set minimum wages and maximum working hours for coal miners. Justice Breyer’s reference to the Lochner decision was to an often-criticized decision by the court in 1905, sharply reducing government power to pass social reform legislation.


“Congress was not condemned to inaction in the face of price wars and wage wars so pregnant with disaster [in the coal mining industry]….The liberty protected by the Fifth Amendment [due process clause] does not include the right to persist in this anarchic riot.”


– Excerpt from the dissenting opinion in the 1936 Carter Coal case, by Justice Benjamin N. Cardozo, joined by Justices Louis D. Brandeis and Harlan Fiske Stone. Chief Justice Charles Evans Hughes wrote a separate, partial dissenting opinion, commenting that “it is not for the court to amend the Constitution by judicial decision.”




A century has now passed since the “Lochner era,” that time in early 20th Century American constitutional history when the Supreme Court refused to allow the government to take bold measures to ease the social strain of the Industrial Revolution. And eight decades have passed since the Supreme Court, in an echo of Lochnerism, frustrated the New Deal effort to relieve the agony of the Great Depression.


Still, the memories of those days remain vivid in the minds of Supreme Court Justices today, as they ponder social legislation in the modern era.


No one, it seems, wants to bring back the “Lochner era” in its fullest force, but the surest way to get a stirring debate among the Justices is to bemoan that era’s supposed revival in deciding a tough new case on government’s powers. Such a debate broke out again on Monday, in a Supreme Court case that has great dramatic potential, in the mundane context of how to make the trains run on time.


The new case of Department of Transportation v. Association of American Railroads is a test of the constitutionality of a 2008 law, in which Congress gave Amtrak a co-draftsman’s role with a government agency in writing new standards on improving the on-line performance of passenger trains. Because Amtrak trains use the rail lines of the nation’s freight railroads, and have priority in doing so, the performance standards have at least an indirect effect on whether freight trains will deliver cargo on time, as shippers expect and demand.


The court’s review of that case turns directly on whether the Justices will decide it by relying upon their 1936 decision in the Carter Coal Co. case. In that decision, at the peak of the fight between a conservative Supreme Court and President Franklin Roosevelt, the court relied on two constitutional theories to nullify a law seeking to stabilize wages and working hours for coal miners. Wages and hours, under that law, were to be set by the coal companies.


One theory the court used was the so-called “non-delegation doctrine” – that is, the Constitution’s prohibition on Congress handing off its legislative powers to someone else (in that case, to the management of the coal companies). The other theory was the protection against arbitrary government power that is guaranteed by the Constitution’s Due Process Clause.


When a federal appeals court in Washington last year struck down the grant of standards-writing authority in the railroad industry to Amtrak, it relied solely on the “non-delegation doctrine.” Amtrak, it said, is a private company, and Congress had no power to let Amtrak act as a surrogate legislator, writing binding rules for rail operations. It said that it had no need to rule separately on whether that grant of power violated the due process rights of the freight railroads.


The federal government took the case on to the Supreme Court, raising only the “non-delegation” issue. But the freight railroads’ trade group argued in response that the court should also rule on their due process argument.


In hearing that case on Monday, the court appeared to be closely divided, along ideological lines. The more conservative Justices were skeptical about Amtrak’s assignment, the more liberal ones were skeptical about the constitutional challenge.   But it seemed quite clear that there is no likely majority on the court to revive the “non-delegation doctrine,” because the court has not used that to nullify any law since the Carter Coal decision.   To do so, it seemed, would be to bring back some constitutional memories that are not comfortable.


But there was enough doubt, in the minds of what might turn out to be a majority on the court, about the constitutional wisdom of the 2008 law to at least hint at a decision against Amtrak.   It was obvious that Justice Breyer sensed just that potential outcome, leading him to bring back the specter of “Lochnerism” to try to head off what he saw as a modern constitutional trend he perceives as having “no stopping place.”


Months from now, the nation will learn whether there will be a constitutional echo of 1936.


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