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Turn-of-century bakery invoked in health care law debate

By David Ariosto, CNN
updated 5:25 AM EDT, Fri April 6, 2012
STORY HIGHLIGHTS
  • President mentions the Lochner case in defending the Affordable Care Act
  • Case involved bakery owner who wanted workers to work longer than law allowed
  • Supreme Court found in Lochner's favor in 1905 but that decision was overturned in 1937

NEW YORK (CNN) -- At the turn of the last century, a New York bakery owner named Joseph Lochner decided he wanted his employees to work longer hours than state law allowed.

The defiant baked goods vendor was later fined $50 after he decided to break the law and require a worker to toil in his Utica, New York, shop for more than 60 hours per week, the maximum permitted by the so-called Bakeshop Act of 1895.

Battling back after a pair of failed appeals, in 1905 Lochner took his case to the U.S. Supreme Court and won, ushering in a controversial age commonly known as the Lochner era, in which the high court used the New Yorker's case to help knock down laws it thought infringed upon economic liberties.

Though the Lochner ruling was overturned in 1937, President Barack Obama mentioned the case this week as he sought to defend his administration's Affordable Care Act, a health care reform bill intended to provide coverage to tens of millions of uninsured people. The Supreme Court is expected to rule on challenges to the law in late June.

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"We have not seen a court overturn a law that was passed by Congress on an economic issue, like health care, that I think most people would clearly consider commerce, a law like that has not been overturned at least since Lochner," Obama told reporters on Tuesday. "So we're going back to the '30s, pre-New Deal."

From 1905 until 1937, the Lochner case was commonly employed to strike down progressive era laws, including several New Deal programs penned by then-President Franklin D. Roosevelt.

"It's a rich part of American history to have justices and presidents in conflict," said CNN Senior Legal Analyst Jeffrey Toobin. "In the 1930s, President Roosevelt was so stymied that he tried to pack the court," a reference to FDR's attempt to add more justices to the bench in an effort to tip the body in his favor.

On Thursday, the Justice Department affirmed its stance that federal courts indeed have the authority to decide the constitutionality of laws, obeying an unusual order from a federal appeals court that asked for a written explanation about the administration's position on judicial review.

The move came after a political spat that accompanied an Obama comment in which the president said he was "confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

"I just remind conservative commentators that for years, what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law," he said.

The comment drew a storm of criticism and a request for the letter from the Justice Department by the 5th U.S. Circuit Court of Appeals, which is hearing a challenge to the health care law.

At issue is whether mandating Americans to hold health insurance or face a fine is constitutional, and if not, whether the rest of the bill should remain in tact.

Both those in support of and against the health care law, which passed despite fierce Republican opposition in March 2010, commonly point to a ruling made five years after the Lochner decision was overturned.

In 1942, the high court decided against a farmer named Roscoe Filburn who tried to abolish a federal law that sought to regulate the amount of wheat he was allowed to grow, and fined him for exceeding that limit.

"It's a case that very broadly describes the scope of congressional powers," said Erwin Chemerinsky, dean of the University of California, Irvine law school.

If the federal government can fine farmers for growing too much wheat, the health care law's supporters say, then that same logic can be applied to penalizing those who refuse to buy health insurance.

The law's opponents counter that the Wickard v. Filburn decision instead establishes boundaries of congressional power, and that a failure to buy health insurance cannot be construed as commerce or interstate activity.

Since the Filburn ruling, the Supreme Court has largely held off on blocking federal laws over the commerce clause, a constitutional provision that grants Congress the power to regulate commerce but which has also been subject to various interpretations.

"Since 1937, no major federal regulatory legislation has been struck down as exceeding the scope of Congressional powers or violating state's rights," said Chemerinsky.

But in 1995, the court said Congress had exceeded its bounds when it ruled that a law intended to keep guns away from school zones did not fall under economic activity intended by the commerce clause.

The court also weighed in when it upheld in 2005 the federal government's right to block the backyard cultivation of marijuana and prevent doctors from prescribing it, ruling that Congress' right to regulate interstate commerce is broad enough to override even states that permit it.

"Congress' power to regulate purely activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce is firmly established," Justice John Paul Stevens wrote for the majority.

That 6-3 decision, which was notably supported by justices Antonin Scalia and Anthony Kennedy, led supporters of the current health care law to suggest the pair might also back its constitutionality. However, recent Scalia comments have led observers to question whether any part of the law could survive if the individual mandate was struck down.

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