The Trump Administration and the Law of the Lochner Era

Abstract

During the Lochner era, the Supreme Court shielded liberty of contract and property rights; it privileged private ordering and restrained the reach of government regulation; and it embraced robust conceptions of national sovereignty with respect to immigration and trade. Though Lochner itself remains an anti-canonical case, many of the conceptions of rights, state power, and sovereignty embraced by the Lochner-era Court persist in legal and political discourse today. This Article shows that these ideas now have a politically powerful sponsor and proponent in the Trump Administration. The motif of a constitutional framework over a century old appears in the Trump Administration’s policy positions and legal approach to areas as diverse as health insurance regulation, administrative law, regulatory reform, net neutrality, drug law, immigration, and tariffs. Grappling with these resemblances reacquaints us with some neglected aspects of the constitutional thought of our past, casts fresh light upon the unfolding events of the present day, and allows us to better anticipate what the future will bring. Mapping the grammar of rights and power that permeates the Trump Administration’s agenda for government and law, this Article explains how that Administration might bend the road forward back to the past.

Keywords: Locher, Trump, immigration, tariffs, delegation, non delegation, Affordable Care Act, liberty of contract, health insurance, net neutrality, regulatory reform