An Entrenched Legacy: How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court

1 The New Deal Constitutional Revolution

1 the new deal constitutional revolution A Revolution Brought On by Crisis The economic depression of the 1930s created the most cataclysmic social crisis in American history. Tens of millions of people lost their homes and means of livelihood. From 1929 to 1933, nearly two-fifths of all corporate businesses failed.1 One quarter of the working-age population was unemployed. Civic institutions and the rule of law were threatened by social upheaval and revolution. In response to this crisis, the Hoover administration had relied on the same instruments of public aid that had been used during the previous economic depressions of the nineteenth century—state governments. But upon his election, President Franklin D. Roosevelt instead turned to the national government, believing that only the centralized power of the federal government could offer any meaningful relief. This unprecedented expansion of federal power was met with a series of constitutional challenges. Many of these challenges involved the federal administrative agencies that were formed to implement the New Deal relief programs. To perform the wideranging duties imposed on them, these agencies incorporated within themselves a combination of all three constitutional powers —legislative, executive, and judicial.2 Although this combination sought to achieve efficiency in government, it contradicted tradi1 . Forrest McDonald, A Constitutional History of the United States (Malabar, Fla.: Robert Krieger, 1986), 193. 2. Cindy Buys and William Isasi, An Authoritative Statement of Administrative Action: A Useful Political Invention or a Violation of the Separation of Powers Doctrine? 7 N.Y.U. J. Legis. & Pub. Pol’y 73, 89 (2003). 12 ■ an entrenched legacy tional separation of powers principles. However, the urgent needs of a traumatized society seemed to demand decisive, unified, and powerful governmental action, unencumbered by separation of powers constraints. Contrary to the beliefs of the founding era, strong centralized government during the New Deal period was seen not as a threat to liberty but as a savior of a broken society. And to make possible that saving role, the Court was called upon to sanction the granting of wide, unspecified powers to administrative agencies. But no matter how much the Court tried to rationalize this unprecedented delegation of governmental powers, any real attempt to apply separation of powers criteria would, to proponents of the New Deal, have prevented the government from effectively meeting the emergency demands being put upon it.3 In addition to eroding the separation of powers doctrine, the New Deal also undercut the principles of federalism that had long characterized America’s system of governmental organization and responsibility. Because of the crisis posed by the Great Depression and the perceived need to exert massive federal control over the nation’s economy, President Roosevelt ‘‘quickly scrapped his earlier states’ rights views’’4 and instigated a vast increase in federal power. Although the states had previously served as the primary venue for self-government, during the New Deal they appeared helpless to address the social crisis brought on by the Great Depression.5 Furthermore , the notion that the states would act as a check on the federal government seemed irrelevant, given the need for swift, decisive national action. Thus, the New Deal agenda posed significant problems for existing constitutional doctrines on federalism and separation of powers . On one hand, the Court had to recognize the pressing social needs that the new federal programs sought to address; but on the other, the Court had to confront the question of whether it was 3. Jamison Colburn, Democratic Experimentalism, 37 Suffolk U. L. Rev. 287 (2004). 4. David B. Walker, The Rebirth of Federalism (Chatham, N.J.: Chatham House, 1995), 94. 5. Cass Sunstein, Constitutionalism After the New Deal, 101 Harv. L. Rev. 421, 442 (1987). the new deal constitutional revolution ■ 13 going to ignore constitutional doctrines that the framers had seen as vital to the American constitutional scheme. The resolution of these questions not only determined the fate of the New Deal, but dictated the course of constitutional law during the remainder of the twentieth century. Not surprisingly, during the half century following the start of the New Deal, both the federalism and the separation of powers doctrines effectively disappeared.6 The Court’s Initial Reaction to the New Deal One reason the New Deal reformers were drawn to the centralized administrative state was their belief that agencies would provide independent, expert avenues for social change.7 As Cass Sunstein notes, New Dealers—like the...