RENEE MONTAGNE, HOST:
This is the month that the U.S. Supreme Court is expected to rule on the constitutionality of President Obama's health-care overhaul. It is a case that poses perhaps the biggest challenge to congressional powers since the New Deal in the 1930s.
Here's NPR legal affairs correspondent Nina Totenberg with a history lesson on the Commerce Clause, which is at the center of the case.
NINA TOTENBERG, BYLINE: The Constitution gives Congress the power to regulate commerce among the states, and it authorizes Congress to use all means that are necessary and proper to achieve that goal. The Founding Fathers' purpose was to put an end to the interstate rivalries that balkanized the country after the American Revolution.
But the words of the Commerce Clause are pretty general. And it's the Supreme Court that for more than 200 years, has interpreted what they mean. The court's first major Commerce Clause decision came in 1824. The great Chief Justice John Marshall, who was himself one of the Founding Fathers, wrote that the Commerce Clause gave Congress broad power to regulate commerce, and that this power was mainly limited by the power of the people to deny their representatives' re-election if they didn't like what Congress did.
The decision infuriated the likes of Thomas Jefferson, who viewed federal power as far more limited. But the ruling stood as the guiding light on Commerce Clause questions for about 70 years.
The next landmark case came in 1895, during the rise of great national corporations and concentrations of wealth. When the U.S. government, using the antitrust law, sought to block the leading sugar-refining company from acquiring 98 percent control of the industry, the company fought back - and won. The Supreme Court ruled that since sugar refining took place before shipments of the product crossed state lines, Congress was powerless to regulate the industry.
Federal Appeals Court Judge J. Harvie Wilkinson, author of a new book on constitutional theory, knows that this was a period of profound change in America - massive industrialization coupled with changes in communication and transportation.
J. HARVIE WILKINSON: And the question is OK, these changes are occurring, and can the Congress of the United States - can it deal with them? Can it regulate them? The court gave a preliminary answer - no.
MONTAGNE: Over the next 40 years, the court used a variety of standards to determine which regulations were permissible, and which were not. But the standards were vague, and the decisions inconsistent, unpredictable and subjective. At the same time, the court, citing the right to make private contracts, was striking down state legislation aimed at regulating wages, hours and working conditions. It was a one-two punch.
The court's hostility to regulation became far more aggressive yet at the height of the Depression when Congress, at the behest of President Franklin Roosevelt, enacted New Deal legislation to set rules for everything from banks to agriculture - all, on the brink of disaster. Repeatedly, the court struck down legislation enacted by huge congressional majorities. New York Law School professor James Simon, author of a book about the court and the New Deal, puts it this way:
JAMES SIMON: The conservative majority started with the proposition that laissez-faire economics was good; and that any intrusion by the state, or by the federal government, was necessarily suspect.
TOTENBERG: The ultimate setback for the New Deal came in 1936 when the conservative court, by a 5-to-4 vote, struck down a new federal law designed to regulate wages, hours and working conditions in the coal-mining industry. The court said that coal production, like sugar refining, did not constitute commerce among the states and thus, could not be regulated by the federal government.
Months later, after winning a landslide re-election, President Roosevelt announced what came to be known as his court-packing plan. He proposed to add six new justices to the court. The court, as Wilkinson observes, was not blind to the fact that it was confronting a popular consensus.
WILKINSON: The Supreme Court itself appeared to sense the gravity of the situation, and to back off.
TOTENBERG: Two months later, with the switch of one vote, the justices this time upheld a critical piece of economic legislation regulating labor conditions in the steel industry. Historians agree that the steel case ushered in the modern Commerce Clause doctrine.
The high point of the new era was a 1942 test of a major law aimed at stabilizing agriculture prices, which were in free fall. The law paid farmers not to grow certain crops on some of their land. Farmer Roscoe Filburn contended that Congress could not constitutionally bar him from growing wheat on his own land, for his own use. The court, however, ruled that if Filburn could exceed his growth allotment so, too, could others. And in the aggregate, that would undermine the goal of stabilizing prices.
For the next half-century, no piece of economic regulatory legislation was struck down under the Commerce Clause. In 1995, that streak came to an end when the Supreme Court struck down a federal law that banned the possession of guns within a thousand feet of a school. A five-justice majority said that was a bridge too far, because the law did not regulate any economic activity. A second case of this sort followed five years later. But in hindsight, neither did much to change the overall deference to Congress on regulating the economy.
Now comes the Obama health-care overhaul, known as the ACA - the Affordable Care Act - a law under full assault by the modern conservative movement. Some, like Georgetown Law professor Randy Barnett, the architect of the challenge, say openly that they believe many of the New Deal cases were wrongly decided.
RANDY BARRETT: They are well-settled precedents, and they're not likely to be revisited in my lifetime. But I do think that according to the original meaning of the Constitution, they were wrongly decided. I don't think that the court should simply defer to what Congress wants, especially when the issue is the scope of Congress' own power.
TOTENBERG: Barnett argues that the health-care law can be struck down without undoing 75 years of judicial precedent. But his critics, including George Washington law professor Jeff Rosen, contend that's disingenuous; that the goal here is to achieve what has not been achievable even by conservative Republican presidents and Congresses - rolling back major economic regulation.
JEFF ROSEN: Let's not pretend that this is a - just modest case of applying existing precedents. The question is: Are we going to reverse decades of judicial deference in economic matters?
TOTENBERG: Jeff Shesol is author of a book on the Roosevelt court-packing plan.
JEFF SHESOL: That expansive understanding of the Commerce Clause has been the basis of minimum-wage legislation, of workplace safety legislation, of economic protections and in fact, of our civil rights laws.
TOTENBERG: Nonetheless, Shesol says comparisons to constitutional crises of the 1930s can be overblown. Roosevelt and his allies really believed that if they could not enact major reforms to deal with the Depression, there would be a total economic collapse that would make the Depression look like a cakewalk.
SHESOL: That the conditions would be paved for the rise of a dictator. They were watching what was happening in Europe, and they really believed that if they couldn't get these pieces of legislation through the Supreme Court, that the whole thing might come crashing down.
TOTENBERG: Then, as now, advocates on both sides thought the very survival of democracy was at stake. Nina Totenberg, NPR News, Washington.
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