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Published online by Cambridge University Press: 18 August 2010
Howard Gillman is unconvinced by my argument that New Deal lawyers turned to the history of federal disaster relief in support of key spending measures, such as the Social Security Act. Likewise, he is unpersuaded by Justice Stone's suggestion to Frances Perkins that she could “do anything under the taxing power.” I understand why Stone's comment grates on Gillman's modern ear; it grated on mine too. What is Stone talking about, and how could his comment be squared with our understanding of the pre–New Deal period as one of sharp limits to federal power imposed by the courts? Gillman's conviction that, in this era, the Supreme Court exercised substantial veto power over federal spending leads him to some critical misreadings of key cases and misstatements of fact. I appreciate the opportunity to respond to his comments and, in particular, to include some details regarding Supreme Court developments for which there was no space in the article itself.
1. In The Constitution Besieged, Gillman argues that during the Lochner era, the Court was motivated by hostility to “class” legislation that “promoted only the narrow interests of particular groups or classes rather than the general welfare.” In his view, the prior political commitments of justices led them to “strike down legislation that (from their perspective) was designed to advance the special or partial interests of particular groups or classes.” See Gillman, Howard, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham: Duke University Press, 1993), 7 and 10Google Scholar.
2. That the Court refused to declare the bounties as unconstitutional class legislation favoring the sugar men is even more surprising because the Court had to reverse a lower court that had struck down the bounty on this precise basis. United States ex. Rel. the Miles Planting and Mfg. Co. v. Carlisle, 5 App. D.C. 138 (C.A.D.C. 1895). The government likely shared this surprise, as it clearly expected to prevail. After all, it had boldly refused to carry out a statute that had been passed by Congress and signed by the president.
3. Even the Westlaw headnotes for Realty Company summarize the opinion as holding that Congressional appropriations “can rarely, if ever, be the subject of review by the judicial branch.”
4. 301 U.S. 308 (1937).
5. Helvering v. Davis, 301 U.S. 619, at 640–41. The strength of the precedent was not limited to cases of federal power. Two months earlier, the Alabama Supreme Court had relied on Realty Co. in upholding the state's unemployment compensation scheme as an appropriate use of the state's police power. That “some individuals may receive more immediate benefits than others” was not fatal to the plan because under Realty Co. such payments were permissible if part of a general plan serving a public purpose or discharging a public duty. Beeland Wholesale Co. v Kaufman, 174 So. 516, 524 (Ala. 1937).
6. The difficulty of distinguishing between a “debt” arising from a “moral obligation” and “general welfare” was frequently noted from the very beginning of the litigation over the Roosevelt administration's programs. For example, a district court relied upon Realty Co. for its conclusion that building municipal power plants was within the general welfare. The court concluded that the distinction between “debt” and “general welfare” was incoherent because “the only constitutional power to pay such a debt as the promise to give a bounty to sugar producers and manufacturers is in clause 1 of section 8, and the Court said that there was the source of the power.… By what sort of reasoning can it be argued that the same language which authorizes Congress to appropriate money to pay a debt not incurred in the discharge of any power elsewhere vested in Congress does not also authorize some object essential to the general welfare not within the scope of any power elsewhere vested in Congress.” Missouri Utilities Co. v. City of California, 8 F. Supp. 454 (W.D. Mo. 1934). The government's brief in Butler made the same point. Brief for the United States, at 179, United States v. Butler, 297 U.S. 1 (1936) (No. 401).
7. The Child Labor Tax Case offers even less support for Gillman's argument. There, the Court never even reached the question of the scope of Congress's power to tax for the general welfare, concluding quickly that the tax on businesses employing child labor was not a tax but was a penalty designed to regulate a matter reserved to the states. Another case discussed by Gillman, Frothingham v. Mellon, did raise the subject of the scope of the General Welfare Clause, but as in Butler the Court declined to exercise judicial review, disposing of the case on the basis of standing. In any event, Gillman's suggestion that Frothingham somehow provides the only “serious precedent for the claim that the judiciary would have a very small role to play in reviewing congressional spending decisions” is belied by the fact that the Court did not similarly dispose of Butler, Helvering, and Steward Machine on the basis of standing, despite the fact that the government raised it. See, e.g., Brief for the United States, at 40–45, Helvering v. Davis, 301 U.S.619 (1937) (No. 910)Google Scholar ; Brief for the United States, at 122–35, United States v. Butler, 297 U.S.1 (1936)Google Scholar (No. 401). Hiss was less sanguine than Gillman about the efficacy of Frothingham, as he devoted the bulk of his brief to deference and the scope of the General Welfare Clause.
8. Likewise, the Ninth Circuit noted in upholding the conditional expenditure of federal highway funds contingent on the states adopting a uniform speed limit, courts have almost uniformly shied away from meddling in the congressional power of the purse. Nevada v. Skinner, 884 F.2d 445 (9th Cir. 1989).
9. The book, also titled The Sympathetic State, will treat the use of the disaster precedent in the legal and political defense of the New Deal in close detail. See also works cited in Dauber, Michele Landis, “The Sympathetic State,” Law and History Review 23 (2005): 391, n. 12CrossRefGoogle Scholar.
10. Radio Address, 1937, Harry L. Hopkins Papers, box 12, Speeches and Articles, Franklin and Eleanor Roosevelt Library, Hyde Park NY.
11. The disaster precedent actually extended out of the federal spending context into the interpretation of the state police power. For example, the Supreme Court held in Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934) that Minnesota's Mortgage Moratorium Law did not unconstitutionally interfere with contractual obligations because “if state power exists to give temporary relief from the enforcement of contracts in the presence of disasters due to physical causes such as fire, flood, or earthquake, that power cannot be said to be nonexistent when the urgent public need demanding such relief is produced by other and economic causes” (439–40). The Alabama Supreme Court explicitly relied on disaster relief and Blaisdell in holding that the state's unemployment compensation statute was within the state's police power to enact because the suffering caused by large scale economic difficul-ties, like that caused by “fire, flood, or earthquakes” was “a proper subject of governmental action in the interest of the general welfare.” Beeland Wholesale Co. v. Kaufman, 174 So. 516, 524–25 (Ala. 1937). Gillman finds fault with the fact that I chose not to discuss Public Pensions by Susan Sterett. Sterett's book, while quite good in some respects, is flawed for its failure to distinguish between federal and state spending doctrines and practices, as well as its incorrect theory of the legal defense of the Social Security Act. Sterett asserts that the New Deal spending programs were justified as payment for “service” by workers to the state, however, as Beeland shows, this is inaccurate. Instead, Beeland, which was the most important test case of state unemployment compensation statutes, relied for its conclusion that unemployment relief was a valid public purpose on the fact that “starvation, or the tendency to it, due to economic depression, is as alarming and dangerous to the state and its people as that condition due to flood, drouth, or earthquake.” Beeland Wholesale Co. v. Kaufman, 525.