The Court’s attack on the “ever-normal granary”

June 30, 2015

I’ve been celebrating like many of you over the marriage equality and Obamacare decisions last Thursday and Friday. But my own celebrations are tempered by the realization that these two cases don’t symbolize any shift on the Court. Kennedy’s libertarian philosophy has paid dividends in the gay rights controversy for years. But the decision last November to hear the case challenging whether federal health exchanges could provide subsidies to those without the money to buy a health plan unassisted, turned into a trap.[1] The scale of damage that would have been done by blocking the subsidies made it impossible even for opponents of the program to shut it down. Nothing in the decision suggests that Kennedy had a change of heart about having wanted to declare it unconstitutional, and nothing suggests that Roberts had a change of heart about narrowing the commerce power, even though he had approved the individual mandate in the statute as a tax. Twenty years ago, Thomas wrote he would consider going back to the Court’s very restrictive definition of federal powers before 1937 when President Franklin Roosevelt’s appointments changed the Court’s philosophy. Apparently Scalia and Alito are on Board with him.

That brings me to raisins.

Horne v. Department of Agriculture,[2] looks like the Supreme Court is maneuvering to get us back to the era when it throttled government economic policy. Horne held unconstitutional a program to keep the supply of raisins on an even keel.

Roosevelt’s New Deal Administration had the dream of an “ever normal granary” for farmers. Their prices were spiking in both directions, making farming very difficult especially for family farmers whose resources to endure periods of low prices were limited. The statute was passed in 1937 to create the “ever-normal granary,” in order to deal with the effects of the great depression, stabilize prices, preserve supplies against shortages from drought or other natural causes and to protect farmers against “disastrous lows” from bumper crops.[3]

The result was a program to store portions of crops in government facilities when supply exceeded demand and release them in periods when yields were too low. It was a program designed by farmers for farmers.

The Horne decision used the takings clause to overrule part of that nearly eighty year old statute which had been designed to help pull the country out of the great depression of the ‘30s.

If one simply reads the words of this Roberts Court decision, it looks easy to get around. Government could use a regulation or a tax. And there are other ways to make this decision seem appropriate and unthreatening.

But I don’t believe it. This case has been part of a decade long set of challenges looking for a way to take down federal agricultural marketing policies. The attorney for the Hornes was a well-known conservative activist, professor and former judge. I doubt he handled this case just because he sympathized with the Hornes.

Similarly, when the Rehnquist Court decided United States v. Lopez in 1995 on federalism grounds all the constitutional scholars said it was insignificant, a shot across the bow but portending nothing. Within a few years it was clear they were wrong. The Court started declaring civil rights statutes unconstitutional as violations of principles of federalism that are nowhere in the language of the Constitution.

This case is not a one off. The Court has been developing takings doctrine so that it can be used to block federal regulation of the economy and the environment. The conservative faction on the Roberts Court is trying to develop legal tools to return the U.S. to a period in which we are a congerie of 50 small states instead of a single proud country. And if that happens, family farmers especially may be sorry to be free of federal regulation.

— This commentary was broadcast on WAMC Northeast Report, June 30, 2015.

[1] Linda Greenhouse, The Supreme Court’s Reality Check, NY Times blogs, June 25, 2015, http://www.nytimes.com/2015/06/26/opinion/the-roberts-courts-reality-check.html?rref=collection%2Fcolumn%2Flinda-greenhouse

[2] Horne v. Dep’t of Agric., 2015 U.S. LEXIS 4064 (2015).

[3] Mordecai Ezekiel, Farm Aid-Fourth Stage, The Nation, February 26, 1938, Vol. 146, No. 9, p. 236-238, available at http://newdeal.feri.org/nation/na38146p236.htm.


Supreme Poison: Adultery and States’ Rights

November 16, 2013

A week ago my students and I went to the U.S. Supreme Court and saw the argument in Bond v. United States.

Carol Bond tried to poison Myrlinda Haynes because of an affair with Bond’s husband. Local authorities wouldn’t bother helping Haynes but sent her to the Postal Service, because poison was found in her mail and the Postal Service has the power to prosecute crimes involving the mail. The Postal Service set up a camera and caught Bond in the act. Postal inspectors arrested Bond and a federal grand jury indicted her for violating the Chemical Weapons Implementation Act.

The United States is a party to the international Chemical Weapons Convention. Congress passed a statute to implement the Convention which prohibited “knowing possession or use, for nonpeaceful purposes, of a chemical that can cause death” or other harms. Treaties and state failure to execute them were a major reason for the Constitution, which gives Congress power to pass laws that are necessary and proper for carrying them out.

But attorneys for Bond smelled an opportunity to narrow national power, arguing such crimes were local and reserved to the states. Read the rest of this entry »


Supreme Court Plays Guardian Counsel in the Health Care Argument

April 3, 2012

Let’s understand what that argument about the health insurance mandate was about. Everybody agreed that a single payer system would have been constitutionally OK. It would have been based on the taxing power. However toxic taxes are to the public, legally they are not particularly toxic. Everyone admits the taxing power is broad. Read the rest of this entry »


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