Worse Than Lochner

Ian Millhiser examines the growing movement on the American right that believes that nearly 100 years' worth of major legislation violates the Constitution, and what this means for future judicial opinions.

There is an alternate universe where everything violates the Tenth Amendment—and much of Congress lives in it. Senator Tom Coburn believes that all federal education programs, from Pell Grants to Title I to student loans, violate the Constitution. Senator Rand Paul thinks that the federal ban on whites-only lunch counters is forbidden. Senator Mike Lee believes that child labor laws, federal disaster relief, food stamps, the Food and Drug Administration, Medicaid, income assistance for the poor, and even Medicare and Social Security violate the Constitution. And, of course, half Congress thinks that health reform is unconstitutional.

Surely it cannot be the case that nearly 100 years worth of major legislation violates the Constitution?

The above excerpt was originally published in Yale Law and Policy Review. Click here to view the full article.

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