The Era of Big Government is Starting Over: Will the Obama Administration Transform American Constitutionalism in the Way that FDR Did?

By MICHAEL C. DORF


Tuesday, Dec. 30, 2008

Despite Bill Clinton's announcement in his 1996 State of the Union Address, rumors of the demise of big government appear to have been greatly exaggerated. With President-elect Obama and the heavily-Democratic incoming Congress poised to spend nearly a trillion dollars on an economic stimulus, and with the federal government already investing heavily in banking and automobile manufacturing, a new era of very big government is just beginning.

The last time the federal government undertook gigantic projects to rescue the economy, it not only created new regulatory infrastructures; it also changed prevailing views about the nature of American government itself. In particular, the New Deal disrupted prior views about the core issues of constitutional law: federalism; separation of powers; and individual rights.

Will the Obama Administration's programs likewise transform American constitutionalism? It is too early to say. However, in this column, I hazard some guesses about the possible impact on constitutional understandings of a transformative administration.

The Mechanisms of the New Deal's Changes to Constitutional Law

President Franklin Delano Roosevelt's presidency changed constitutional law through two mechanisms, and across three main dimensions. One mechanism was the appointments process. During his unprecedented tenure in office, Roosevelt appointed eight Supreme Court Justices, all of them either New Dealers or sympathetic to the goals of the administration. The new Justices were willing to sweep aside precedents that stood in the way of what they regarded as needed legislation.

The second mechanism was the sheer force of will. Faced with a truly dire crisis, the Roosevelt Administration responded vigorously with large new programs. Because nearly everyone eventually recognized the need for urgent action, even some Justices who were not especially sympathetic to the New Deal joined Roosevelt's appointees in affirming its constitutionality.

How the New Deal Diminished States' Rights

How did the New Deal change constitutional law? First, it greatly expanded the scope of federal power relative to the powers of the states. Previously, federal efforts to revive the national economy and otherwise exert regulatory control over the nation's commercial life were sometimes struck down by the Supreme Court as beyond the scope of Congressional power under Article I of the Constitution. However, by the end of the Roosevelt Administration, the Court had all but abandoned its role in policing these boundaries.

The clearest example was the Court's 1942 decision in Wickard v. Filburn, upholding an application of the Agricultural Adjustment Act of 1938, under the theory that a farmer's decision to grow wheat but not to sell it (much less sell it across state lines) counted as interstate commerce that could be regulated by Congress. That decision remains very much alive; the Supreme Court relied on it in the 2005 case of Gonzales v. Raich in upholding federal regulation of marijuana grown to supply an intrastate medicinal market that was legal under state law.

The New Deal's Fourth Branch

With the expansion of federal power came a corresponding problem: Congress lacked the time and expertise to make rules for the wide array of policy questions on its vastly-expanded agenda. The solution was to delegate power.

To this day, American schoolchildren learn that the federal government consists of a legislative branch that makes the law, an executive branch that enforces the law, and a judicial branch that interprets the law. Yet in fact, the government also includes what may best be described as a fourth branch--administrative agencies that combine lawmaking, executive, and adjudicatory functions.

Some of these agencies--such as the Department of Homeland Security and the Internal Revenue Service (itself housed within the Treasury Department)--are formally subject to Presidential control. Others--such as the Federal Communications Commission and the Federal Reserve Board--are formally (and in operation) independent. However, none fits neatly into the conventional tripartite scheme of "Schoolhouse Rock."

The Roosevelt Administration did not invent administrative agencies. In some form, they date to the origins of the Republic and "Departments" are specifically mentioned in the Constitution. However, the New Deal greatly increased the role of agencies in government. The claims by conservatives in recent years that we have a "unitary executive"--that is, that the President is entitled to control everyone who exercises authority in administrative agencies--is a reaction against this characteristic New Deal form, but the continued prevalence of administrative agencies shows how much the New Deal accomplished on this front.

From Economic Rights to Civil Rights and Civil Liberties

From roughly the 1890s until 1937, the federal and state courts sometimes invoked the Due Process Clauses of the Fifth and Fourteenth Amendments as limits on progressive legislation. Those provisions (and parallel state constitutional provisions), it was said, protected the liberty of contract against unreasonable interference. Accordingly, courts invalidated such measures as minimum-wage and maximum-hour legislation.

However, in what became known as "the switch in time that saved nine" because of its proximity in time to FDR's Court-packing plan, the Supreme Court reversed course in the 1937 case of West Coast Hotel Co. v. Parrish. The Court concluded its opinion in that case by expressly invoking the lessons of the Great Depression as justifying deference to "legislative judgment."

Yet even as the Supreme Court was withdrawing protection for economic rights, it preserved a role for itself in protecting what we now regard as civil rights and civil liberties. Indeed, the great constitutional battles in the ensuing seventy years have mostly been about such topics: desegregation; police practices; school prayer; dissident speech; abortion; affirmative action; gay rights; and more.

The Justices FDR named to the Supreme Court were selected principally because they were expected to uphold the New Deal. But the work that would embroil and often divide them and their successors, over the ensuing decades, was quite different.

The Mechanisms of an Obama Constitutional Revolution

President Obama will almost certainly not be able to name as many Justices as FDR did. After all, the Twenty-Second Amendment, adopted specifically in response to Roosevelt's unprecedented third and fourth terms, limits Obama to a maximum of two terms. Moreover, the Court's five most conservative Justices are relatively young. At the end of eight years of an Obama Presidency, John Roberts would be just approaching his 62nd birthday, while the oldest of the conservatives, Antonin Scalia and Anthony Kennedy, would be 80. Many Justices have served well beyond that age.

Accordingly, even if he is re-elected in 2012, President Obama may not have the chance to move the Court's center of gravity through his judicial appointments. Nonetheless, judicial retirements and, unfortunately, deaths, are unpredictable. Thus, it would not be entirely surprising were he to have the opportunity to reshape the Court.

Moreover, even apart from personnel changes, the steps the Obama Administration takes in response to the economic crisis could potentially transform American constitutionalism once again. How so? Let us consider three prospective changes that could parallel the transformations wrought by FDR.

International Legislation

The financial crisis has revealed, among other things, how interconnected the global economy is. Effective regulation, going forward, may therefore require--or at least be perceived to require--much stronger coordination of economic policy than we have seen heretofore.

Suppose, for example, that President Obama negotiates and the Senate ratifies a treaty that gives to some international body the authority to make substantive rules of law, and gives to an international tribunal the power to adjudicate claims arising under that body of law--perhaps even exercising appellate review of judgments by the U.S. Supreme Court.

Would such an arrangement be constitutional? It is not entirely clear. In two recent cases involving the Vienna Convention on Consular Relations (which governs how signatory nations must treat foreign nationals arrested in their territory), the Roberts Court has taken a narrow view of the effect of a judgment of an international tribunal under U.S. law.

To be sure, those decisions interpreted the particular treaty at issue, and a different case would be presented by a treaty that unequivocally gave binding effect to judgments rendered by an international tribunal. But there is a growing body of literature--much of it authored by conservative scholars with whom a majority of the Roberts Court might be in sympathy--arguing that the Constitution places strict limits on the ability of foreign or international bodies to bind the United States in its internal law.

Whether those views would prevail in a case before the Supreme Court might well depend on the extent to which one or more of the conservative Justices could be persuaded that the current crisis requires a tightly-coordinated international solution. Just as the Great Depression persuaded the Court that national solutions were required to jump-start the national economy, so, too the argument would go, the global financial crisis might persuade the Court that a global response is required.

The Continued Erosion of the Public/Private Distinction

Whereas the burgeoning administrative state scrambled the roles of the branches of government, the emerging architecture--likely only to be reinforced in the Obama Administration--scrambles the roles of government and the private sector. Already we have begun to see government take on an enormous role in bailing out private enterprise. As the bailouts unfold, we can expect to see government oversight as the price of government largesse.

Indeed, during the campaign and since his election, President-elect Obama has repeatedly expressed the view that taxpayers should get a good deal for their investment in banks, automobile manufacturers, and other firms in which the government injects cash. In some circumstances, that will require not just contracts and oversight, but something more like government receivership.

Greatly-increased entanglement between government and private entities will put pressure on at least two areas of constitutional doctrine. The first concerns the question of what counts as "state action." Because the Constitution only limits the government, rather than private parties (except insofar as it forbids slavery), it is important to be able to distinguish government (or "state") action that triggers constitutional protections from merely private action that does not. In most contexts, mere regulation of a private actor does not convert that private actor into the state. But what happens when the government actually runs the nominally-private enterprise? Newfangled entities could call forth new doctrines addressing this and related questions.

Second, we may hear an echo of a question left somewhat unresolved by the New Deal. Even as the Court approved of delegations to administrative agencies, the Justices were skeptical of an early New Deal measure--the delegation of lawmaking authority to private actors by the National Industrial Recovery Act, or NIRA. Although the 1935 decision in A.L.A. Schechter Poultry Corp. v. United States invalidated NIRA on the grounds that it exceeded Congressional power under the Commerce Clause and delegated unbounded power to a government agency, the real flaw in NIRA arguably was the power it delegated to private firms and trade organizations.

In the years since the New Deal, courts have tended to approve delegations to private actors, using the same deferential test they use to judge delegations to government agencies. But some academics and others have argued that the situations are not comparable. After all, administrative agencies are still accountable, either via the President or through judicial review under the Administrative Procedure Act. Private actors, in contrast, may wield power without accountability to the public. Thus, the critics argue, delegations to private actors must be more strictly controlled.

New and expanded use of public/private partnerships can be expected to make these arguments salient, although it is hard to predict how the judiciary will react. Fearing the draining of accountability, courts might indeed tighten the limits on delegation to private actors. Or, seeing these new arrangements as necessary, they might well make clear once and for all that very broad delegation of lawmaking power, even to private actors, is acceptable.

New Rights

Finally, an Obama Administration could transform individual rights. Even the opportunity to replace one conservative Justice might well result in important doctrinal change. For example, although President-elect Obama is on the record as opposing same-sex marriage (but favoring civil unions), the sorts of Justices he is likely to nominate could well find that laws forbidding same-sex couples to marry deny equal protection, especially as public attitudes on this issue continue to shift.

Small-bore doctrinal change is also possible on a range of other issues, including abortion, affirmative action, church-state separation, and the death penalty. Truly transformational change in matters of individual rights, however, would require something more. One possibility, albeit a remote one, would be the recognition of some positive rights.

Constitutional rights in the American tradition are negative rights--that is, they protect against certain kinds of government actions. Despite a brief flirtation with the concept in the early 1970s, the Supreme Court never adopted a robust notion of positive constitutional rights--that is, rights to government assistance.

But suppose that as part of a broad program, the Obama Administration creates a statutory right to health care or even a right to a government job (for those who cannot find work in the private sector). And suppose further that such entitlements come to be seen as more than mere discretionary government programs; suppose they become a part of the fixed landscape of American government. Under such circumstances, it is conceivable that the Supreme Court would recognize--as constitutional courts in other countries have done, under their constitutions--at least some limited positive rights under the U.S. Constitution.

Madison and Bingham, or FDR and Obama?

All of the possibilities I have sketched here are admittedly speculative. Further, truly transformational change in American constitutionalism will be resisted by defenders of the ancien regime.

Among other things, conservatives will deny that the Obama Administration, its allies, and successors have the power to change the American Constitution. Only the rigorous process of constitutional amendment, they will say, can bring about fundamental change.

That claim, however, is historically inaccurate. The working Constitution we have is not only a product of James Madison's generation or John Bingham's generation. (Bingham was the principal Congressional sponsor of the Fourteenth Amendment.) To a very large extent, the Constitution as we have come to know it was created by FDR. Indeed, even today's conservative Justices accept the "New Deal settlement" as the basic framework of constitutional law.

Whether Barack Obama transforms American constitutionalism remains to be seen. By temperament a conciliator, he might well trim his agenda under pressure. But like FDR and his Illinois predecessor, Abraham Lincoln, Obama faces a major national crisis, and thus an opportunity to follow in their footsteps by reshaping our Constitution for generations to come.


Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.



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