A Balancing Act: Public Health, COVID-19, and the Economic Due Process “Right to Work”

Authors

Jennifer L. Piatt, Arizona State University

Date of this Version

6-16-2021

Document Type

Article

Citation

Nebraska Law Bulletin (June 16, 2021)

Comments

Copyright 2021, the author

Abstract

During the infamous Lochner era (1897–1937), courts invalidated hundreds of regulatory measures on economic liberty grounds, doing untold damage to public health. Two vehicles have recently emerged by which the Supreme Court could re-enter this long-dead line of “economic due process” jurisprudence: first, via challenges to particularly burdensome professional licensing requirements; and second, via challenges to business closure orders resulting from the COVID-19 pandemic. This article concludes that the Supreme Court’s re‑entry into the “right to work” conversation, albeit unlikely, could help prevent certain unduly burdensome licensing requirements from surviving simply on protectionist grounds. Nonetheless, to protect the public’s health, the Court must avoid a full return to Lochner.