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Law and Reform, Healthcare and the Forum of Change – Part 2

Last week I addressed the Constitutionally mandated limits on the powers of Congress. Today’s topic investigates the history of these limits being violated, how the courts (Supreme, especially) reacted, and the status quo in light of this history.

America’s Great Depression was a four year period in which the gears of the worldwide economy jarringly halted. Numerous causes have been proposed, but those are a topic for another post. Today’s topic focuses on proposed and attempted solutions and their impact on the landscape of American policy.

Similar to the recent election, Roosevelt and the broader Democratic party entered office with significant political capital. This capital came in the form of backlash against a Republican party that espoused “rugged individualism” in the face of adverse economic climate. The Federal Reserve, a mere 16 years old at the time of the crash, is oft blamed for the problems leading to the economic downturn. Whether by the Monetarists’ view that the crash was due to the Fed not pumping enough liquidity into the markets or the Austrians’ view that it was a previous shift from gold that caused the crash does not change that the crash happened. Addressing that crash was viewed by the People as the responsibility of the Federal government – they created the Fed, the Fed didn’t stop the crash, they should fix the problem. The result was Roosevelt’s political capital, and its outcome – the New Deal.

Roosevelt met staunch resistance from the Supreme Court during the beginning of the New Deal. Though the policies put forth by Congress and approved by Roosevelt were disparate, they shared one common thread: increased federal power. There are those that argue the expanse of federal power predate those policies Roosevelt approved. However, the policies predating Roosevelt, as well as his first-term policies, met repeated Constitutional challenge. A central piece of New Deal legislation was tested and found unconstitutional in Panama Refining Co. v. Ryan. Reading the majority opinion, it becomes clear that the Supreme Court was concerned that the breadth of power Congress was trying to vest in the Federal government were beyond prudence:

The point is not one of motives, but of constitutional authority, for which the best of motives is not a substitute. While the present controversy relates to a delegation to the President, the basic question has a much wider application. If the Congress can make a grant of legislative authority of the sort attempted by section 9(c), we find nothing in the Constitution which restricts the Congress to the selection of the President as grantee.

The court saw that, despite the best intentions of both Congress and the President to help the People, they are not granted unlimited authority in all legislative manner. Ultimately, they struck down the “Hot Oil Act” as unconstitutional, setting up the confrontation that would ultimately grant the Federal Government the growth it desired.

After reelection in 1936, stinging with the rulings in Panama Refining Co. v. Ryan, Schechter Poultry Corp. v. United StatesUnited States v. Butler, etc, and still upholding New Deal ideals, Roosevelt proposed the Judiciary Reorganization Bill of 1937. Known by many as the “Court Packing Bill,” Roosevelt saw the interference of the Supreme Court as an unacceptable hindrance to his New Deal. Roosevelt proposed appointing a new justice for every federal court justice over 70, providing a means to replace those justices standing in the path of his new policies. Though the packing bill was defeated (after a historical anecdote known as the “switch in time that saved nine“), it marked a radical shift in judicial policy.

Post-West Coast Hotel, many New Deal and subsequent policies went unchallenged or were decided in favor of allowing increased Federal control. I opine the shift towards Federal control was bolstered at this point, perhaps irreversibly. Though the government had established over 100 years earlier, in McCulloch v. Maryland, that the Necessary and Proper clause granted broad Congressional power within Article 1 Section 8 guidelines, it was in 1937 that the US saw its first span of minimally-fettered federal growth. In what I consider a sad misappropriation of the reasons for the 10th Amendment’s existence, United States v. Darby Lumber Co. stated, in part:

The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.

Even in writing the above, the Supreme Court acknowledged the fear that the Federal government would exceed its granted power. Moreover, it clearly shows that the purpose of the 10th Amendment was known to stand as a restriction of such excess. The court’s next paragraph even seems to contradict the thought as put forth (emphasis mine):

From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.

Under this interpretation, the Supreme Court should not, in my opinion, grant such broad authority to the Federal government to exercise any power even tangentially related to those powers enumerated. The “plainly adapted” clause in Darby indicates that the laws under consideration must be obviously permitted by the Constitution when considering 10th Amendment inquiry. The Court dismissively refers to the 10th Amendment as “but a truism” – a tautology which does nothing but restates the basic premise of the Federal government. Somehow the entirety of the above, bolded statement is lost in pursuit of the first two words, “all means.”

Bringing this back to its origin, a nationalized health care program, I invite those who think it’s within the current purview of the government’s power to show how. Moreover, that explanation should manage to stand without a tortured path of tangential relations to commerce.

I don’t address the need for single payer healthcare, because I think the forum must be decided, first. Should enough of the People find it within the legitimate interests of Congressional control, I contend those people should follow the amendment process. Until then, each State, county, municipality, etc should have the choice to enact or reject its own program. Should the experiment of such be found effective, other states can witness the resounding success, convincing them such a plan benefits them. Moreover, the state-by-state competition allows the People a manner by which to compare the real-world quality and impact of such plans, before deciding which is better, if any at all. It is then the forum can be expanded, only after the experiment has been proven worthwhile within our system of governance.

Supreme Court Justice Louis D. Brandeis is famous for his dissenting opinion in New State Ice Co. v. Liebmann, oft called “Laboratories of Democracy” quote:

It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

Though others point to other countries as examples of these laboratories, the comparison falls short. Our government, its rules, and the composition of our nation’s heritage differs than those other countries. While such countries may inspire states of a similar bent to follow their plans, it is hardly a just comparison to state the entirety of the states must plunge into the murky waters of such a plan. This holds doubly true when one considers our legal history and the requirements placed upon our Federal government. Ultimately, the move towards a single-payer system lies in the hands of the States, or the People. Taking another path subverts and short-circuits the nature of our country’s policies. Perhaps it’s a city v. countryside issue, but that is in the realm of another post.

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  1. Benji says

    Great insight on how your opposed to the process not the final result. It’s clear from your post that nationally roll out of public health care is risky. And not following the due process because it is being driven by the government not the people. I would like to see the government explore doing this at state wide levels first and seeing what works on a smaller scale.



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