Andrea Scoseria Katz, Washington University in St. Louis School of Law, has posted Separation-of-Powers Lochnerism:
One hundred and twenty years ago, the Supreme Court handed down one of the single most notorious opinions ever rendered, striking down a New York labor law for violating a right to contract found nowhere in the text of the Constitution. The era of Lochner v. NY (1905) is well past us, but not the judicial impulses that gave rise to the case. With a new champion in the Roberts Court, Lochnerism is alive and well, deployed in a new context to redefine the relationships between the President, Congress, federal agencies, and the courts.--Dan Ernst
Bringing together two lines of case-law-on the President and the agencies-this Article shows how the Roberts Court is now doing for the separation of powers, what the Lochner Court did for rights. In the first, the Court identifies "core" presidential (super-)powers and bars Congress from regulating these by statute. In the second, it crafts unwritten principles that defeat agency action: the rule that Congress must give a "clear statement" when it delegates "major" authority, or that deference to agencies violates judicial independence, are two examples. Taken together, the two lines of cases make "the separation of powers" into a collection of judge-made rules no other branch can change, arrived at by judges who disregard "plain text" for "higher-law" values they alone can see and articulate. One particularly salient consequence has been the aggrandizement of the presidency, now put in full relief by the unprecedented barrage of executive orders issued by the second Trump presidency, many of questionable legal grounding.
During the '23-'24 term, the Court's landmark rulings on presidential immunity and the federal agencies each garnered significant attention. But viewing them through the lens of this new "separation-of-powers Lochnerism" reveals these to be part of the same judicial project, a judge-led revolution decades in the making. Our Constitution creates three branches of power and gives each tools to mutually check and balance the others. Separation-of-powers Lochnerism distorts this ideal into a judge-made constitutional order requiring interbranch isolation (except on the part of the judiciary), with the roles of Congress, the President, and the agencies increasingly being defined by the Supreme Court according to higher-law principles of its own making. This Article demonstrates that this scheme is both ahistorical and dangerous, threatening to upend our tripartite system of government.
