New Deal Dying
From Jeff Abouaf:
What's New in the Legal World? A Growing Campaign to Undo the New Deal
By ADAM COHEN
Published: December 14, 2004
The New Deal made an unexpected appearance at the Supreme Court recently - in the form of a 1942 case about wheat. Some prominent states' rights conservatives were asking the court to overturn Wickard v. Filburn, a landmark ruling that laid out an expansive view of Congress's power to legislate in the public interest.
Supporters of states' rights have always blamed Wickard, and a few other cases of the same era, for paving the way for strong federal action on workplace safety, civil rights and the environment. Although they are unlikely to reverse Wickard soon, states' rights conservatives are making progress in their drive to restore the narrow view of federal power that predated the New Deal - and render Congress too weak to protect Americans on many fronts.
We take for granted today the idea that Congress can adopt a national minimum wage or require safety standards in factories. That's because the Supreme Court, in modern times, has always held that it can.
But the court once had a far more limited view of Congress's power. In the early 1900's, justices routinely struck down laws protecting workers and discouraging child labor. The court reversed itself starting in 1937, in cases that led to Wickard, and began upholding these same laws.
States' rights conservatives have always been nostalgic for the pre-1937 doctrines, which they have lately taken to calling the Constitution-in-Exile. They argue - at conferences like "Rolling Back the New Deal" and in papers like "Was the New Deal Constitutional?" - that Congress lacks the power to do things like forcing employers to participate in Social Security. Given how entrenched New Deal programs have become in more than half a century, these plans for reversing history have always seemed more than a bit quixotic.
But that may be about to change. The attacks on the post-1937 view of the Constitution are becoming more mainstream among Republicans. One of President Bush's nominees to the United States Court of Appeals for the Ninth Circuit, Janice Rogers Brown, has called the "revolution of 1937" a disaster. And last month in the Supreme Court - in a case about medical marijuana - the justices found themselves having to decide whether to stand by Wickard.
In that case, two Californians who use marijuana for medical reasons argued that Congress, which passed the Controlled Substances Act, did not have the constitutional power to stop them. To pass a law, Congress needs a constitutional hook, and the Controlled Substances Act relied on one of the most important ones, the Commerce Clause, which authorizes Congress to "regulate Commerce ... among the several States." The Californians argued that their marijuana did not involve interstate commerce because it never left their state.
That is where Wickard v. Filburn comes in. Roscoe Filburn was a farmer who argued that his wheat crop should not fall under federal production quotas because much of it was consumed on his own farm. The Supreme Court held that even if that wheat did not enter interstate commerce, wheat grown for use on a farm altered supply and demand in the national market. The decision gave Congress broad power to regulate things that are located in one state, like factories and employer-employee relationships.
Some leading conservatives want the court to overturn Wickard and replace it with a pair of decisions from the 1800's that one brief filed in the case said would return "Commerce Clause jurisprudence to its settled limits prior to the New Deal." That would be a bold move, but the court has already been heading down this path. In recent years, it has struck down the Gun-Free School Zones Act and a crucial part of the Violence Against Women Act for exceeding Congress's power.
If the Supreme Court drifts rightward in the next four years, as seems likely, it could not only roll back Congress's Commerce Clause powers, but also revive other dangerous doctrines. Before 1937, the court invoked "liberty of contract" to strike down a Nebraska law regulating the weight of bread loaves, which kept buyers from being cheated, and a New York law setting a maximum 10-hour workday. Randy Barnett, the law professor who represented the medical marijuana users, argues in a new book that minimum wage laws infringe on "the fundamental natural right of freedom of contract."
In pre-1937 America, workers were exploited, factories were free to pollute, and old people were generally poor when they retired. This is not an agenda the public would be likely to sign onto today if it were debated in an election. But conservatives, who like to complain about activist liberal judges, could achieve their anti-New Deal agenda through judicial activism on the right. Judges could use the so-called Constitution-in-Exile to declare laws on workplace safety, environmental protection and civil rights unconstitutional.
Getting rid of Wickard would be an important first step. At last month's argument, that did not appear likely. Justice Antonin Scalia, a leading states' rights champions, said he "always used to laugh at Wickard," but he seemed prepared to stick with it. It may be, however, that the justices are quicker to limit Congress's power when it does things they don't like (like gun regulation) than when it does things they do (like drug regulation). They may be waiting for a more congenial case.
The court will not return to the pre-1937 Constitution in a single case, but it seems likely to keep whittling away Congressional power and federally protected rights. If it does, what President Franklin Roosevelt declared in 1936 - after two key New Deal programs were struck down - will again be true: "It was not the wage earners who cheered when these laws were declared invalid."
WE NEED TO BREATHE SOME LIFE INTO THE CONTRACT CLAUSE, JUST KIDDING.
What's New in the Legal World? A Growing Campaign to Undo the New Deal
By ADAM COHEN
Published: December 14, 2004
The New Deal made an unexpected appearance at the Supreme Court recently - in the form of a 1942 case about wheat. Some prominent states' rights conservatives were asking the court to overturn Wickard v. Filburn, a landmark ruling that laid out an expansive view of Congress's power to legislate in the public interest.
Supporters of states' rights have always blamed Wickard, and a few other cases of the same era, for paving the way for strong federal action on workplace safety, civil rights and the environment. Although they are unlikely to reverse Wickard soon, states' rights conservatives are making progress in their drive to restore the narrow view of federal power that predated the New Deal - and render Congress too weak to protect Americans on many fronts.
We take for granted today the idea that Congress can adopt a national minimum wage or require safety standards in factories. That's because the Supreme Court, in modern times, has always held that it can.
But the court once had a far more limited view of Congress's power. In the early 1900's, justices routinely struck down laws protecting workers and discouraging child labor. The court reversed itself starting in 1937, in cases that led to Wickard, and began upholding these same laws.
States' rights conservatives have always been nostalgic for the pre-1937 doctrines, which they have lately taken to calling the Constitution-in-Exile. They argue - at conferences like "Rolling Back the New Deal" and in papers like "Was the New Deal Constitutional?" - that Congress lacks the power to do things like forcing employers to participate in Social Security. Given how entrenched New Deal programs have become in more than half a century, these plans for reversing history have always seemed more than a bit quixotic.
But that may be about to change. The attacks on the post-1937 view of the Constitution are becoming more mainstream among Republicans. One of President Bush's nominees to the United States Court of Appeals for the Ninth Circuit, Janice Rogers Brown, has called the "revolution of 1937" a disaster. And last month in the Supreme Court - in a case about medical marijuana - the justices found themselves having to decide whether to stand by Wickard.
In that case, two Californians who use marijuana for medical reasons argued that Congress, which passed the Controlled Substances Act, did not have the constitutional power to stop them. To pass a law, Congress needs a constitutional hook, and the Controlled Substances Act relied on one of the most important ones, the Commerce Clause, which authorizes Congress to "regulate Commerce ... among the several States." The Californians argued that their marijuana did not involve interstate commerce because it never left their state.
That is where Wickard v. Filburn comes in. Roscoe Filburn was a farmer who argued that his wheat crop should not fall under federal production quotas because much of it was consumed on his own farm. The Supreme Court held that even if that wheat did not enter interstate commerce, wheat grown for use on a farm altered supply and demand in the national market. The decision gave Congress broad power to regulate things that are located in one state, like factories and employer-employee relationships.
Some leading conservatives want the court to overturn Wickard and replace it with a pair of decisions from the 1800's that one brief filed in the case said would return "Commerce Clause jurisprudence to its settled limits prior to the New Deal." That would be a bold move, but the court has already been heading down this path. In recent years, it has struck down the Gun-Free School Zones Act and a crucial part of the Violence Against Women Act for exceeding Congress's power.
If the Supreme Court drifts rightward in the next four years, as seems likely, it could not only roll back Congress's Commerce Clause powers, but also revive other dangerous doctrines. Before 1937, the court invoked "liberty of contract" to strike down a Nebraska law regulating the weight of bread loaves, which kept buyers from being cheated, and a New York law setting a maximum 10-hour workday. Randy Barnett, the law professor who represented the medical marijuana users, argues in a new book that minimum wage laws infringe on "the fundamental natural right of freedom of contract."
In pre-1937 America, workers were exploited, factories were free to pollute, and old people were generally poor when they retired. This is not an agenda the public would be likely to sign onto today if it were debated in an election. But conservatives, who like to complain about activist liberal judges, could achieve their anti-New Deal agenda through judicial activism on the right. Judges could use the so-called Constitution-in-Exile to declare laws on workplace safety, environmental protection and civil rights unconstitutional.
Getting rid of Wickard would be an important first step. At last month's argument, that did not appear likely. Justice Antonin Scalia, a leading states' rights champions, said he "always used to laugh at Wickard," but he seemed prepared to stick with it. It may be, however, that the justices are quicker to limit Congress's power when it does things they don't like (like gun regulation) than when it does things they do (like drug regulation). They may be waiting for a more congenial case.
The court will not return to the pre-1937 Constitution in a single case, but it seems likely to keep whittling away Congressional power and federally protected rights. If it does, what President Franklin Roosevelt declared in 1936 - after two key New Deal programs were struck down - will again be true: "It was not the wage earners who cheered when these laws were declared invalid."
WE NEED TO BREATHE SOME LIFE INTO THE CONTRACT CLAUSE, JUST KIDDING.
Comments
by Bob Clasen
While a few conservatives may long for these "good old days", the liklihood of it happening is the same as current Republican leadership abolishing Social Security . . . zero. The real question is whether America will follow Europe in a gradual slide into an ever enlarging Socialist safety net that slowly erodes economic incentives until our economies are as stagnant as those in Europe, and the Twentieth Century becomes the century of Asia. This seems quite likely to me.
_______________________________________
_________________________
The most dynamic economy in the world, does have social security system. If you listen to people with some knowledge of our social security system, it seems clear that for at least 20 to 40 years, the social security system is solvent. It is the general tax system that is being starved with tax cuts. The government balances the budget with the social security surplus. You remember the Al Gore's lock-box?
Anyway, regular tax revenues will have to be increased sometime between 2020 and 2040 because the current surplus will be needed.
What the Republicans want is to get rid of this shell game by either cutting or limiting social security, rather than have to go to the US taxpayer and tell the truth....we have to raise taxes.
Now I have been pretty adamant that I think it is bullshit that wage earners have to shoulder the tax burden with investors get low tax rates on dividends and capital gains.
Remember, during the late nineties we had higher taxes and a booming economy. Thus, all arguments that higher taxes mean an economic slump or no funds for investment are a crock.
What you are going to see over the next few weeks is the Republican spin machine saying the sky is falling. Social Security is on the verge of collapse. This can't go on. The younger workers won't get anything.....blah blah blah.
This is all intended to "soften up" the public to support privatizing social security. Trust me, this is just like the switch from pensions to 401(k) plans. In the private sector, escaping from an unfunded pension liability is good business. But we are talking about New Deal social responsibility. Do we want old people out on the street with no income? Safety net......
I have to admit I get a little woozy when they start talking about problems . . . in forty years. Who knows what is going to happen in Five years, let alone fifty. But encouraging savings such as 401k seems like a good thing.
This country is not going to go down in socialist flames if we "save" social security. This system has been in place for decades.
True blue (or should I say red) Republicans, and by that I mean the rich Republicans, want to do away with all public benefit systems becuase they cost tax dollars.
Several fixes would extend the life of the system. Gradually raise the retirement age to reflect current demographics. Means test receiving social security up to 70 or higher. Increase the taxability of social security for higher income families. AND MOST IMPORTANTLY STOP BALANCING THE BUDGET WITH THE SOCIAL SECURITY SURPLUS. THE CURRENT DEBATE FROM THE RIGHT IS TRYING TO HIDE THE FACT THAT CURRENT TAX CUTS ARE BEING SUPPORTED WITH PAYROLL TAXES PAID BY WORKING STIFFS. IN OTHERWORDS, THE 15% CAPITAL GAIN RATE AND THE 15% DIVIDEND TAX RATE ARE BEING SUPPORTED BY WAGE EARNERS. WHY THE BIG LIE ISN'T OBVIOUS TO ALL THOSE MIDDLE INCOME PEOPLE IN THE RED STATES IS BEYOND COMPREHENSION.