What's New in the Legal World? A Growing Campaign to Undo the New Deal

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The New York Times
December 14, 2004
EDITORIAL OBSERVER

By ADAM COHEN

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."

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