Home / General / “There Are Too Many Regulations Of Business Nowadays. Please Hold Most of Them Unconstitutional. I Am Not A Crackpot.”

“There Are Too Many Regulations Of Business Nowadays. Please Hold Most of Them Unconstitutional. I Am Not A Crackpot.”


I suppose it would be BLACKMAIL to observe that the election(*) of Donald Trump gave us several decades worth of a justice who needs to turn to his left to see Clarence Thomas:

For more than a quarter century, Justice Clarence Thomas served as the Supreme Court’s daft old uncle. Under Thomas’ reading of the Constitution, federal laws ranging from child labor laws, to minimum wage laws, to the ban on whites-only lunch counters are all unconstitutional. Thomas once argued that the First Amendment does not apply to high school students because eighteenth century fathers behaved like petty tyrants.

But Thomas may have just been dethroned. Dissenting in Sveen v. Melin, Neil Gorsuch tells Thomas to hold his beer.


There is a robust policy debate among states about whether this sort of automatic revocation is a good idea, but, as Justice Elena Kagan explains on behalf of every member of the Court who doesn’t occupy a seat that was held open for a year until Donald Trump could fill it, Minnesota’s law is clearly constitutional.

There is a long line of precedents, stretching back to the English common law, providing that when someone’s marital status changes, the law should automatically update who benefits if that person dies. Writing only for himself, however, Gorsuch claims that Minnesota’s law violates the Constitution because life insurance agreements are a form of contract.

The original Constitution forbids states from enacting a “law impairing the obligation of contracts.” According to Gorsuch’s lone dissent, this means that any law that prevents an already-existing contract from being enforced is invalid. Gorsuch’s rule, moreover, is quite unforgiving — “any legislative deviation from a contract’s obligations, ‘however minute, or apparently immaterial,’ violates the Constitution.”
Were this rule to become the law, it would have staggering consequences across many areas of the law. Suppose that Joe agrees to pay Ali $10 an hour to work in Joe’s factory. Now suppose that the state legislature passes a law increasing the minimum wage to $12 dollars an hour. Under Gorsuch’s rule, Joe and Ali’s employment contract preceded the state minimum wage law, so the minimum wage law could not, in this instance, apply to Ali.

Or imagine that a power plant, which uses an extraordinary dirty method to produce power, contracts with a power company to provide a certain amount of energy to the power company’s customers. Then imagine that a state passes a law banning this very dirty form of energy production, effectively requiring power plants to adopt less polluting technology. Under Gorsuch’s rule, that state law would impair an existing contract, and thus would be unconstitutional as applied to this power plant.

Of course, in the short term how far Gorsuch is from the median vote is not terribly important, although the fact that he’s basically a standard-issue Republican appellate judge of his generation should be very troubling.

For now, the fact that he’s changed the median vote is bad enough:
The fact that Gorsuch’s Epic Systems opinion was joined by four justices is a worrying sign that the Court’s present majority no longer recoils against Lochnerian ignorance of how the workplace functions. Gorsuch’s Sveen opinion is worrying for a different reason. It suggests that Gorsuch is eager to implement an anti-government agenda that would even make Justice Thomas cringe.

And by giving a fifth vote to John Roberts’s longstanding vote suppression agenda, he makes for more people like himself on the federal bench even when his party’s agenda can’t command national majorities. Ain’t what we’ll generously call American democracy grand?

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