CHICKEN IN THE POT Financial journalist Amity Shlaes speculates in National Review about the potential effect on Obamacare’s entire future should the religious plaintiffs win in Sebelius v. Hobby Lobby the case now pending before the Supreme Court that pits Christian-owned businesses against Obamacare regulations which compromise certain religious principles (as discussed here a few weeks ago):
How dare a little religious case trip up the mighty Affordable Care Act and jeopardize the ACA’s establishment as permanent law of the land? Cases involving religious details however do have a way of stopping big social legislation…. To see how this might happen it helps to go back to a case involving a commensurately ambitious piece of legislation Franklin Roosevelt’s 1933 National Industrial Recovery Act.
The National Industrial Recovery Act like the Affordable Care Act aimed to do nothing less than change an entire sector of the economy — in that case the industrial and business sector. After passage in 1933 NIRA created a bureaucracy labeled in its turn the National Recovery Administration or NRA. NRA was hard to contradict: Its leader was a general; its emblem the bald eagle. “Almighty G-d have mercy on anyone who attempts to trifle with that bird ” General Hugh Johnson told the public. The courts seemed to agree: Nine in ten NRA cases at first were decided in favor of the government.
But then she writes along came a most improbable case in which a kosher Shabbos-observant butcher shop in Brooklyn — A.L.A. Schechter Poultry — went up against the NRA and its intricate web of administrative codes governing every minute detail of businesses in various sectors. The code governing the slaughterhouse was the strangely titled “Code of Fair Competition for the Live Poultry Industry for the Metropolitan Area In and About New York” and NRA investigators claimed that the Schechters had engaged in multiple violations.
The five Schechter brothers were convicted in the lower courts which included fines and even brief jail time. But then the case went all the way to the Supreme Court where on May 27 1935 Chief Justice Charles Hughes announced the court’s unanimous verdict striking down the NIRA as unconstitutional and with it the New Deal’s entire attempt to control and direct the American economy based on the notion that all businesses are part of an interstate stream of commerce and thus subject to regulation under the Constitution’s Commerce Clause.
As Justice Louis Brandeis told FDR’s aides at the time “This is the end of this business of centralization and I want you to go back and tell the president that we’re not going to let this government centralize everything.” And indeed in short order hundreds of cases involving NRA code violations were dropped.
Schechter also dubbed the Sick Chicken Case stood for the proposition that Congress could not regulate a business that only affected intrastate commerce merely because it had some slight and highly attenuated effect on commerce beyond the borders of its home state as well. Some have called it the “Black Monday of the New Deal ” although after President Roosevelt’s later attempt to “pack” the Supreme Court by adding more New Deal–friendly justices the court reverted once more to interpreting the Commerce Clause in a more expansive big-government fashion.
Ms. Shlaes observes that the Jewish connection was very significant:
The fact that these particular butchers observed kashruth the Jewish body of laws involving food was not a coincidence of this case. It was causal…. These were immigrants in an industry that had already seen convictions for racketeering. One could suggest they were the Jewish equivalent of Al Capone…. A smelly business a poultry butcher shop would be unattractive to the public. The pro-Roosevelt journalists could make a funny story out of the pathetic little immigrants with their chickens and they did.
The distinguished columnist Drew Pearson… titled his book chapter on the Schechter case “Joseph and His Brethren” and wrote mockingly of the Schechters’ attorney Joe Heller… “In his Brooklyn Hebrew accent he told the jury how he had known the Schechter boys since they were children ” Pearson wrote of the lawyer…. Very early on indeed the federal prosecutors on the Schechter case began to contend that the Jews had broken their own religious law by selling many sick chickens.
But Shlaes contends
this contempt backfired just as contempt for Christian pro-life culture may backfire on the government in Hobby Lobby. That is because the exposure the Schechters’ case got was extensive…. What was evident was that two large bodies of law were clashing. On the one hand was the elaborate and new NRA poultry code. On the other hand there was the code of the Jewish dietary law based on the Bible itself. In a contest between NIRA (48 stat. 195) and Deuteronomy (14:21) perhaps Deuteronomy had more authority. The government had its health inspectors but who were they to go up against Maimonides himself who had proclaimed that Jews were forbidden to serve “unwholesome” food? As it turned out the Schechters had not sold much if any bad meat — there was no actionable “sick chicken” in the Sick Chicken Case.
She concludes that “such conflicts give the public a chance to consider what it is the government is intruding into or impinging on — not just a vacuum but the private sphere the personal sphere the business sphere and yes the sphere of faith. The spectacle of that intrusion is not easily forgotten once perceived.”
But all this assumes those in power will care what the public thinks. Unfortunately the current administration has forged ahead full throttle with the implementation of Obamacare despite the fact that dozens of public opinion surveys since the law’s passage showing a plurality of the American public is opposed to it.
It also doesn’t help matters that President Obama who used to be an instructor in constitutional law seems not to even be aware of the rather famous Schechter case. Back in April 2012 when the Obamacare case was pending in the Supreme Court the president speaking of the anticipated decision on his signature health care law said that it would be “unprecedented” for a Supreme Court to overturn laws passed by an elected Congress.
The very next day a reporter made the pointed observation that the invalidation of statutes as unconstitutional “is exactly what the court’s done during its entire existence.” In response as the Wall Street Journal’s James Taranto wrote:
[Mr. Obama] spoke slowly with long pauses giving the sense that he was speaking with great thought and precision: “Well first of all let me be very specific. Um [pause] we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue like health care that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner right? So we’re going back to the ’30s pre–New Deal.”
In fact Lochner… was decided in 1905. Thirty years later after the New Deal had begun the high court unanimously struck down one of its main components the National Industrial Recovery Act as exceeding Congress’s authority under the Interstate Commerce Clause. The case was A.L.A. Schechter Poultry Corp. v. U.S. (1935).
If to paraphrase Santayana those who fail to learn constitutional history are doomed to repeat it what can we say of those who fail to teach it?