Marvin Folkertsma

This constitutional imbroglio, Schecter v. United States, was destined to go down in history as the “sick chicken” case and occasioned strong language from the court about a law that, like Obamacare, was collapsing from its own internal contradictions and widespread unpopularity. Indeed, Chief Justice Hughes declared that “extraordinary conditions do not create or enlarge constitutional power”—remember, this was during the Great Depression—and that Congress had abused its “essential legislative function.”

If all this sounds familiar, it should, but things really got interesting after the law was struck down. By the end of his first term, President Roosevelt saw the court declare unconstitutional 10 of 12 major pieces of New Deal legislation, mostly on the grounds that Congress had overstepped its constitutional boundaries. FDR was incensed, and as a result, early in his second term proposed measures that would have increased the size of the court, with the justification that the bench’s elderly members needed assistance to deal with the Supreme Court’s heavy workload. Roosevelt argued that old judges were no longer able to perform their duties, and “little by little, new facts become blurred through old glasses fitted, as it were, for the needs of another generation.” Hence, newly appointed younger judges, more attuned to the times and administration policy, were needed.

This “packing the court” scheme was too clever by half and was greeted with howls of indignation by conservatives and liberals alike; the president’s proposal went nowhere. However, though FDR lost that legal battle, he won the constitutional war. In a series of cases decided during the spring and summer of 1937, the Supreme Court changed its direction drastically in favor of expanded federal power, a transformation of judicial opinions cited as “the switch in time that saved nine” (that is, nine members of the court). The Supreme Court didn’t seriously challenge Congress again on the Commerce Clause until the 1990s.

All of which suggests that although President Obama’s April 2 statement was literally false, or disingenuous to say the least, his clumsy attempt to perhaps bully the Supreme Court has a powerful historical precedent. And trying to back down from his initial statement changes nothing at all, because his words are unspinnable; the president expressed his constitutional sentiments exactly. The question is: Will his tactic work? Will this convoluted, “sick law” inspire a Supreme Court decision on the constitutional limits of the federal government, or will the Supremes cave to administration rhetoric?

Americans will have their answer by the summer of this very crucial election year. In the meantime, the ghost of FDR hovers over the decision-makers in the highest tribunal of our republic.


Marvin Folkertsma

Dr. Marvin Folkertsma is a professor of political science and fellow for American studies with The Center for Vision & Values at Grove City College. The author of several books, his latest release is a high-energy novel titled "The Thirteenth Commandment."