Separation-of-Powers Lochnerism

Authors

Andrea Scoseria Katz, Washington University in St. Louis School of Law

Keywords

Lochner; Lochner Court; Lochnering; Lochnerizing; separation of powers; separation-of-powers; John Roberts; Chief Justice Roberts; Roberts Court; Supreme Court; SCOTUS; agency; agencies; agency power; Congress; Executive; Judiciary; MQD; Major Questions Doctrine; Major Questions; Chevron; Chevron Deference; Loper-Bright; Loper; presidential immunity; checks and balances; tripartite; Youngstown; Justice Jackson; Unitary Executive; Unitary Executive Theory; UET; Constitution; constitutional law; presidential power; Trump

Abstract

One hundred and twenty years ago, in 1905, the U.S. Supreme Court rendered one of the single most notorious opinions in history, striking down a New York labor law for violating the right to contract—a right found nowhere in the text of the Constitution. Though the era of Lochner v. New York is well past us, the judicial impulses that gave rise to the case remain. 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.

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 line, the Court identifies “core” presidential (super)powers and bars Congress from regulating these by statute. In the second line, the Court crafts unwritten principles that defeat agency action; these include the rule that Congress must give a “clear statement” when it delegates “major” authority and the rule that deference to agencies violates judicial independence. Taken together, the two lines of cases make “the separation of powers” into a collection of judge-made rules no other branch can change, devised 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 during President Donald J. Trump’s second term, many of questionable legal grounding.

During the 2023 to 2024 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 decisions to be part of the same judicial project: a judge-led revolution decades in the making. The U.S. 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 Supreme Court increasingly defining the roles of Congress, the president, and the agencies according to higher-law principles of its own making. This Article demonstrates that this scheme is both ahistorical and dangerous, threatening to upend the United States’ tripartite system of government.

Recommended Citation

Andrea Scoseria Katz, Separation-of-Powers Lochnerism, 94 Fordham L. Rev. 833 (2025).
Available at: https://ir.lawnet.fordham.edu/flr/vol94/iss3/1