Ten Steelworkers, Five Justices, and the Commerce Clause
By Amy Davidson
The New Yorker
If there had been Twitter, instead of news tickers, in February, 1937, reporters and other observers would have been using it to follow the arguments before the Supreme Court in National Labor Relations Board v. Jones & Laughlin Steel Corp.
It was the central case of five, argued in one extraordinary round, which challenged the constitutionality of the National Labor Relations Act, also known as the Wagner Act.
The J. & L. dispute involved ten steelworkers who had been fired from the company’s Aliquippa, Pennsylvania, mills for trying to organize a union. As with this week’s hearings on the Affordable Care Act, also known as Obamacare, those deliberations were being watched with an anxiety that extended well beyond any concern for the protagonists in the suit, or even the law in question, to an entire vision of government.
Jones & Laughlin and its companion cases involved the Commerce Clause, the constitutional conductor for a whole orchestra of New Deal programs and Franklin D. Roosevelt’s more urgent efforts to pull the country out of the Great Depression. (It gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”) The post-1937 conception of the Commerce clause has, as Jeffrey Toobin noted yesterday, become an assumed part of any number of government efforts today; it is the defense for challenges to the individual mandate but also to other aspects of the A.C.A., like provisions protecting people with preëxisting conditions.