Justice Breyer violates "Bernstein's Law" (again) by using Lochner v. New York as a bogeyman

|The Volokh Conspiracy |

As I've written before, "We need a Godwin's Law for constitutional litigation: the first side to raise Lochner, especially in a case not involving the Due Process Clause, automatically loses. Let's call it 'Bernstein's Law.'"

Not for the first time, Justice Breyer is on the wrong side of Bernstein's Law.

It happened Monday during oral argument in Department of Transportation v. Association of American Railroads, a case involving the scope of the so-called "non-delegation doctrine," which puts limits on the extent that Congress can delegate its authority. The Supreme Court has eviscerated limits on Congress' ability to delegate to the executive branch, but precedents from the 1930s still limit Congress' ability to delegate to private parties. The lower court held that Amtrak is a private company, and that Congress improperly delegated power to it.

At oral argument, Breyer stated:

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?

In Carter Coal the Supreme Court suggested that delegations to private parties violate the Fifth Amendment's Due Process clause because they inherently result in arbitrariness-the private party will inevitably seek to serve its own interest rather than the public's. Though both cases involved issues of "due process" it's hard to see how that's the same "box" as Lochner-the issue of whether a sufficiently right to liberty of contract exists within the Fourteenth Amendment's Due Process Clause such that New York can't set maximum working hours in bakeries despite asserted health reasons for doing so seems a far cry from the issue of whether Congress's legislative power includes the power to delegate some of that legislative power to private entities.

Of course, when Breyer means the "same box," he likely means not that the cases raise the same analytical issues, but they both belong to "those pre-1937 cases that limited government power t hat I thought we abandoned wholesale, and that we have often associated with Lochner because that case has become the symbol of what we abandoned." But it's exactly that use of Lochner that serves to obfuscate more than illuminate. Carter Coal has never been overruled, and the fact that liberty of contract has been abandoned, or even if we thrown in the abandonment of the Tenth Amendment, General Welfare Clause, other forms of non-delegation, and the Contracts Clause, really has nothing to do with whether the Supreme Court should overrule or keep Carter Coal, anymore than Justice Breyer or the other liberal Justices would casually abandon Meyer v. Nebraska and Pierce v. Society of Sisters simply because they were due process cases decided during the so-called Lochner era. And let's not forget that all of the Progressive Justices cited by Breyer, though dissenting in Carter Coal, joined the unanimous Court a year earlier in rejecting overbroad delegation in the Schechter Poultry case.