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Appeals Court Judges Think All Economic Regulation Should Be Unconstitutional

An unusually blunt ruling from two conservative federal judges, if applied at the Supreme Court level, would make virtually all regulation on businesses or financial firms unconstitutional. DC Circuit Court members David Sentelle (a Reagan appointee) and Janice Rogers Brown (an appointee of George W. Bush) wrote a concurring opinion in a case about regulation for the dairy industry, one that would rewrite several decades of legal history on the legislative powers of Congress. Here’s a section:

America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.

First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever economic policy may reasonably be deemed to promote public welfare.” Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. . . . Thus the Supreme Court decided economic liberty was not a fundamental constitutional right, and decreed economic legislation must be upheld against an equal protection challenge “if there is any reasonably conceivable state of facts that could provide a rational basis” for it.

As Ian Milhiser writes, this would empower judges to eliminate laws they didn’t like, and indeed constrain the legislature on really any policy protecting workers or promoting economic liberty. This has broad applicability across the spectrum of regulations:

The minimum wage regulates how dairy executives operate their business. As do child labor laws. Or workplace safety laws. Or laws that prevent dairies from selling spoiled or tainted milk. In Sentelle and Brown’s America, these laws likely would also be just as constitutionally suspect as a law that gives special rights to white people and not to black people.

Basically, these judges want to run economic policy for the country at their whims, rather than having the elected representatives of the people govern. And they did not really base this in any constitutional grounding, just their desire to set regulatory policy at the judicial level.

This is a really radical vision for society, and an example of the rightward shift of the federal judiciary over the past several decades.

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David Dayen

David Dayen