The Ghost of Chief Justice Charles Evans Hughes Gets a Second Chance

The parallels between these New Deal laws, particularly the National Industrial Recovery Act, and ObamaCare practically write themselves.

Few commenters on the Supreme Court’s decision on ObamaCare accept that a legal thinker as sophisticated as Chief Justice John Roberts could really believe that the law should be upheld under Congress’s taxing power. In any case, if the Court was going to go baying off down the taxing power track, the issues needed much more analysis than the throw-away treatment they got in the course of the litigation.
So the question is, what was Roberts up to?
One common analogy is that Roberts channeled Chief Justice John Marshall, who used Marbury v. Madison (1803) to cement the Supreme Court’s right to assess the constitutionality of actions by other branches of government while affirming the actual actions taken in the case at hand. It is a plausible hypothesis, as Roberts joined the dissenters in limiting government power under the Commerce Clause before he reversed field and upheld the law as an exercise of the taxing power.
Other suggestions are less legally Machiavellian, such as that Roberts must have been blackmailed or “gone off his meds.”
So let me note another precedent that might have moved Roberts to his split-the-baby decision: The 1935 Gold Clause, Schechter Poultry, and other New Deal cases.

By 1938, the Court pretty much withdrew from the business of limiting the power of the executive and legislative branches over the economy.

In the first, Congress had nullified promises of payments in gold, which were common in both private contracts and government bonds at the time, and the question was the constitutionality of this action. It was a genuine constitutional crisis, with President Franklin D. Roosevelt on deck with a draft of a radio address explaining why he would refuse to recognize the decision if the Court threw out the law.

Read more: http://www.american.com/archive/2012/july/the-ghost-of-chief-justice-charles-evans-hughes-gets-a-second-chance