This is the line of attack by the right on Congressional powers:
The unanimous panel easily disposed of the constitutional arguments against the law. However, the concurring opinion by Judge Janice Rogers Brown, joined by Reagan nominee Judge David Sentelle, was anything but unexceptional. One of the most extreme of George W. Bush's ideological nominees to the federal bench, she issued a clarion call to reverse decades of settled law and cripple Congress's constitutional ability to tackle national problems.
In a concurrence loaded with red meat for the political right wing, Judge Brown defended the ideology of the discredited Lochner era, when vitally necessary economic legislation was regularly struck down by an ideological Supreme Court dedicated to limiting the federal and state governments' ability to address the horrific consequences of unbridled capitalism.
The [plaintiffs] Hettingas' sense of ill-usage is understandable. So is their consternation at being confronted with the gap between the rhetoric of free markets and the reality of ubiquitous regulation. The [case] reveals an ugly truth: America's cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.
First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to adopt whatever economic policy may reasonably be deemed to promote public welfare. Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the "democratic process."
These battles dominated the Court's work during the 1930's and the pack of 4 on the Court seem intent on returning us to the 1920's
