Economic Liberty Flashcards
1) Lochner Era
a) Balance between police powers (regs promoting health, welfare, safety) and substantive DP rights (“liberty”)
b) Lochner:
DP Clause, through “liberty” contains restrictions on state–>cannot interfere with economic liberty; Court could strike down st laws based on own opinion of economic/social theories (free market)–>freedom of K
i) F: NY law capping bakers’ weekly daily hours uncon’l under 14A’s substantive right to contract
ii) Inquiry: Is this fair, reas. Exercise of police power or unreas., arbitrary interference with liberty to contract?
iii) Peckam opinion justifies position as if it is understood that “liberty” obviously gave right to K (making a debatable claim as if it is fact there are reas. and different conceptions of liberty
iv) Holmes dissent: for competing, debatable social/economic policy, st legislatures should have latitude to implement what they think is best
2) Abandonment of Lochner
a) Nebbia: Court is without power to invalidate (via DP) economic policy a st decides will promote public welfare
i) F: st statute allowing Board to fix min/max prices of milk; π sold milk below min price–>con’l
ii) harkening Holmes: 2 plausible econ policies: gov intervention or hands-offst, not ct, gets to choose
b) West Coast Hotel: Overturned Adkins and Lochner–>no substantive freedom to K (not a fundamental right)
(1) F: sustained st min wage law for women
c) Footnote 4 in Carolene: rational basis test
Ends/means must be rational, but generally anything goes for social/econ policy—
higher level of judicial scrutiny if:
(a) interferes with fundamental rights (BoR),
(b) restricts political process (democracy doesn’t work righti.e. gerrymandering along racial line), or
(c) involves discrimination against discrete and insular minorities
(a) Lee Optical:
law: opticians couldn’t fit/duplicate eye lenses w/o prescription; Ct speculates that purpose is to keep ophthalmologist/optometrists competitive; battle of lobbies; OK justification was eye health (purposes clearly not for health/it was strong lobbying)–>statute con’l via rational basis test
(b) Skrupa:
Court rejected DP challenge to st law barring all but lawyers from debt adjusting –> RB test
d) Does pure paternalism pass muster?–>Broccoli argument:
gov can’t force people to buy broccoli even though its healthy, so gov can’t force people to buy health insurance or deprive businesses from selling certain sizes of soda
(1) Sugary Drinks case: NYC law capping sugary drinks size invalid since law passed w/o legislation (non-delegation argument)
(a) argument: dif from post-Nebbia cases because this looks like pure paternalism–>is there an argument for turning back to Lochner for instances of pure paternalism? (sub-optimal personal choices (cigs))
(i) counter: externalities: health cost; pupose of gov is to protect people (even against themselves)
3) Takings/Priv Prop-5A:
a) 5A: “…nor shall private property be taken for public use, without just compensation.”
i) Public use = public benefit = use that furthers moral, economic, political, or aesthetic objective
ii) trend: expansion of gov regulatory power: public usepurpose–>legis deference
b) Regulation as a taking
i) Mahon: if reg goes to far, it is a taking
ii) Penn Central: limiting use is not a taking; ad hoc balancing between public/private interests
iii) Per se Takings
(1) Loretto: physical intrusions are per se takings
(2) Lucas: regs the deny all economically beneficial use are per se takings
(a) Tahoe case: Temporary moratorium on develop not a per se taking; duration is but one factor
iv) Stop the Beach: judicial decision can constitute unlawful taking (comp required)
v) Public Purpose?
Kelo:
ED taking as part of integrated economic revitalization w/in broad scope of public use (legitimate public purpose); that the area was depressed/blighted is large factor
(2) F: ED taking for business revitalization plan (giving most of private land to Pfizer)for transfer
(3) Dissent: public use = literal public use (not purpose); against traditional protection of private prop
