In judging Obama’s health care law, the justices were not even planning any such use of the law, but judging whether a bill passed by Congress was in fact something that exceeded the limits set by the Constitution. The president’s phrase that the justices were “an unelected group of people” makes it appear that he does not believe the Court has the right to exercise its authority in the very way the separation of powers demand. He phrased his sentence in such a way to imply that they would be doing something wrong to overturn a “duly constituted and passed law.” That view, of course, was trounced soon after the very founding of our country by Alexander Hamilton, who pointed out in 1788 that “no legislative act… contrary to the Constitution, can be valid.”
And this is why I believe the president had something else in mind. At the start of his term in office, his well-wishers, like the journalist Jonathan Alter, argued that Obama could be our equivalent of FDR and use the presidency to bring the welfare state of the 1930s to standards of our present day. Obama would use his powers to go way beyond the New Deal and successfully transform our country into a European-style social democracy.
As anyone who has looked at our history knows, the early linchpin of the first New Deal was FDR’s National Industrial Recovery Act, or the NRA, which referred to the government agency established to administer the program. The purpose of the Act was to cartelize American industry in the interest of the large corporations. Industries would create code agreements by which every industry would have to adopt the codes that industry-wide boards had established. Big Labor received its share through the announcement of codes that would establish maximum hours, minimum wages, and collective bargaining. Industries such as shipbuilding, woolens, electrical, and the garment industry all signed up with the government program. The NRA did not, historians agree, speed recovery, and probably made it harder to achieve by its restrictions on production and price fixing. In effect, it created a group of private economic governments, in which large corporations dominated code authorities and used their power to stifle competition. It was a vast government overreach and, as some on both the Right and Left argued at the time, was fascism American style.
On May 27, 1935, called Black Monday by New Dealers, the Supreme Court, in a unanimous 9-0 decision, struck down the NIRA. It was too sweeping a delegation of legislative power, and was, as Justice Benjamin Cardozo argued, “delegation running riot.” FDR was both dumbfounded at the decision and angry. The result, later, was his disastrous proposal to “pack the Court” by adding six more judges that he would appoint, thereby providing a guaranteed liberal majority that would not undo programs he wanted the nation to adopt. The move was disastrous, as Americans began to accuse Roosevelt of dictatorial ambitions.
By 1937, FDR had seen the Court declare unconstitutional his Agricultural Adjustment Administration, the AAA, as well as the NRA and a coal conservation act. But much to his pleasure, the Court later began to rule favorably on other pending New Deal programs, including the Wagner National Labor Relations Act, the unemployment provisions of the Social Security Act, and later, the old-age pensions feature of the Act. FDR had, it was said then, lost the fight with the Court but won the war for the rest of his desired legislation.