FDR, the Constitution, and Obamacare


What on earth does FDR — an early 20th century President — have to do with 21st century health care issues like Obamacare?  More than you might think. FDR laid the groundwork for American expectations that the federal government could intervene in matters such as health care.  He did this despite language to the contrary in the Constitution.

A small history lesson is probably in order at this point. When our Constitution was written, expectations were that the federal government would be very small, much less powerful than the state governments.  Early Americans were fearful of a big, powerful federal government.  They wanted to keep governmental power close to home — in the state and local governments — where elected officials would have more accountability.  Freedom would be better protected.  Thus, the Constitution they created gives us a federal government with only limited powers.

One of these powers is found in a constitutional provision called the Commerce Clause. When the federal government claims authority to act, it often does so under this provision:

The Congress shall have power to  . . . regulate commerce with foreign nations, and among the several states, and with the Indian tribes.
U.S. Constitution Article I, Section 8, clause 3

This clause authorizes Congress to act ONLY where “commerce” is interstate. In other words, Congress may act if commerce legitimately transcends state boundaries. Congress may not act in matters that are purely intrastate. To put it another way, Congress may not act where commerce remains within state boundaries.

Supreme_Court_1932That was then.  Now fast forward to FDR’s administration.  Roosevelt, of course, was President during the Great Depression. He did not believe in the limited federal government created by the Constitution. Instead, he sought national, governmental solutions to help those who were suffering from the bad economy.  The massive, federal government solutions that he created were known, collectively, as the New Deal.

The Supreme Court initially struck down many of FDR’s New Deal measures, noting that these federal programs encroached upon decisions that should be made solely within state boundaries.  These early Court decisions were correct. Congress may regulate only interstate matters — matters transcending state boundaries — when it is relying upon its Commerce Clause power. Much of FDR’s New Deal exceeded this federal authority.

Unfortunately, FDR did not take these decisions lying down.  He believed in his programs and decided to push them through at any cost.  In the wake of his landslide victory in 1936, he decided to propose a “court-packing” plan, in which the appointment of up to six new Supreme Court Justices was proposed.  The Court contains only nine Justices. Thus, FDR’s proposal would have nearly doubled the size of the Court. FDR would simply overrule the “stubborn” Justices by appointing more — many more — of his own people. FDR denied that he was trying to threaten the Justices or influence their rulings — but one would be excused for doubting his claims of innocence in this regard.

The court-packing plan became unnecessary. Justice Owen Roberts switched his vote on a 14th Amendment issue in West Coast Hotel Co. v. Parrish, a case that upheld the constitutionality of minimum wage legislation enacted by the state of Washington. Then he switched his vote on Commerce Clause issues as well.  Over the next few years, the Supreme Court embarked on a journey in which it allowed virtually any act of Congress to stand, even when it infringed on matters that were purely local in nature.

At one point, the Court even upheld a completely ridiculous fine levied on a wheat farmer in Ohio. This farmer had been fined for growing “too much” wheat on his own property. He defended himself by noting that his wheat was not involved in interstate commerce: It was used only on his own farm. The Court did not care. It determined that his wheat use affected interstate commerce anyway! After all, the Court reasoned, if he had not grown and used his own wheat, then he would have been forced to purchase wheat from others who are involved in interstate commerce.

Um, okay.

Justice Roberts’ change in heart became known as “the switch in time that saved nine” because FDR dropped his court-packing plan soon thereafter.  The Supreme Court would retain its small size of only nine Justices. Unfortunately, the federal government would grow larger and larger. Americans would forget the original restraints of the Commerce Clause and accept more and more interference from their federal government.  The state governments would become weaker and weaker.

Seventy-five years later, another Justice Roberts would help to expand the federal government still more when presented with a case questioning the constitutionality of Obamacare.

Ironically, Chief Justice John Roberts got it right on the Commerce Clause. It was one of the few cases, since FDR, to find that a federal law had violated the Commerce Clause.  That should have been good, but unfortunately, Roberts moved on to find another route for the federal government to get its way. He seemed to be trying too hard to have his cake and eat it too.  He did not authorize Obamacare under the Commerce Clause, but he did create a tax out of thin air. He used this purported tax to justify the ACA under the federal government’s taxing authority.

But this story, about the second Justice Roberts, is a story for another day.


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Note: Yes, I know there is dispute about whether Owen Roberts ACTUALLY changed his mind because of FDR’s court packing plan or whether the timing was just a coincidence. It’s discussed on page. 246 of my book, FN 10: www.ElectoralCollegeBook.com