WI: Social Security and Wagner Act Unconstitutional?

TRH

From what I've read, the Supreme Court came within one vote each of striking down the Social Security Act and the Wagner Act, two of the biggest components of the New Deal. The fact that they were willing to uphold these took a lot of the momentum out of FDR's proposal to expand the Court. What if they had gone ahead and struck those two laws down, though? I suppose the first question would be whether this would be enough impetus to get the Court-packing bill through. If not, then how will America be affected by not having Social Security or the National Labor Relations Board? For that matter, would it be possible to restore those two pieces of legislation even if the Court were expanded? Would the votes still be there later on?

As close as the two OTL decisions were, I'm not sure if the Court would be short-sighted enough to do this when IOTL they stopped attacking the New Deal in 1937. That said, part of the reason I'm asking is because I feel like Hughes would actually have been able to get away with a few additional blows to FDR's programs, especially if Joseph Robinson still dies. It would certainly have massive repercussions on the New Deal as we know it. How would this play out?
 

Van555

Court Packing might actually go through because that would mean that the Court has literally stripped FDR of everything! :eek:
 

TRH

Van555 said:
Court Packing might actually go through because that would mean that the Court has literally stripped FDR of everything! :eek:
Click to expand...

That's what made me decide this thread was worthwhile - either the Supreme Court is totally upended, or the New Deal is dead. Or maybe even both! :eek:

Massive butterflies no matter what happens.
 
LHB

LHB

FDR would not take that lying down. To see the work of his entire first term go up in smoke because of the Supreme Court would be too much for him and Congress. I'd imagine court-packing would go through in a heartbeat.
 

David T

Actually, the old-age pension feature of Social Security was upheld 7-2 in *Helvering v. Davis* with only McReynolds and Butler dissenting. http://www.ssa.gov/history/supreme1.html So it's very hard for me to see the Court finding it unconstitutional. (The key point is that the SSA rested on the taxing power rather than the Commerce Clause; the Court was prepared to take a much broader view of the former than of the latter--as it did decades later in upholding most of the Affordable Care Act...)

The key 5-4 decisions were *West Coast Hotel v. Parrish*, upholding state minimum wage laws http://en.wikipedia.org/wiki/West_Coast_Hotel_Co._v._Parrish *Jones and Laughlin Steel v. NLRB,* http://en.wikipedia.org/wiki/National_Labor_Relations_Board_v._Jones_&_Laughlin_Steel_Corporation upholding the NLRA, and *Steward Machine Co. vs. Davis* http://en.wikipedia.org/wiki/Steward_Machine_Company_v._Davis upholding the unemployment compensation feature of the SSA. (What made this more problematic than the old-age pension feature was the argument that it involved an unconstitutional coercion of the states.)

Had they gone the other way, court-packing--or at least a compromise version--would probably have passed. They would in any event have been very short-lived cases because Sutherland and Van Devanter were about to retire (and Butler would not live much longer).

Incidentally, not only the 7-2 vote in *Helvering v. Davis* but the fact that the Court had upheld the TVA in *Ashwander v. TVA* (with only McReynolds dissenting) http://en.wikipedia.org/wiki/Ashwander_v._Tennessee_Valley_Authority casts some doubt on the notion that the "four horsemen" were automatic votes against all New Deal legislation. See also the Court's *unanimous* upholding of the revised Frazier-Lemke farm mortgage relief law at http://www.law.cornell.edu/supremecourt/text/300/440
 
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