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Justice Brandeis, Call Your Office

The Times this morning ran a story on yet another fiddle that has been uncovered from the depths of the health-reform bill that passed in the Senate on Christmas Eve. This one favors construction unions. While, under the act, most companies with fewer than 50 employees would not have to provide government-mandated health insurance or pay a tax, those in the construction business would be exempt only if they have fewer than five employees. At least the Times notes that:

The construction industry provision is receiving a second look as work begins in earnest this week to resolve differences in bills passed by the Senate and the House to remake the nation’s health care system. Other provisions sure to be scrutinized include a tax break for the Blue Cross and Blue Shield plan in Nebraska; Medicare coverage for residents of Libby, Mont., sickened by a mineral mine; extra Medicaid money for Massachusetts, Nebraska and Vermont; and a special dispensation for a handful of doctor-owned hospitals.

One would hope that the endless number of constitutionally dubious provisions, including such lulus as requiring a supermajority in the Senate to repeal certain portions of the act, will also get a second look.

Of course, it may be that these provisions end up rescuing the country from this dreadful legislation. In 1933, at the very end of his 100 days, Franklin Roosevelt signed into law the National Industrial Recovery Act. Title II of that act established one of the New Deal’s most famous agencies, the Public Works Administration (PWA), which would build across the country post offices, highways, dams, etc. But Title I of the NIRA established the National Recovery Administration (NRA). It authorized the president to regulate industry, including the establishment of cartels and monopolies, to set prices, and, in effect, oversee the entire American economy, much as today’s health bill would regulate the health-care industry.

It was a breathtaking expansion of federal power and, for a while, the NRA’s symbol — a blue eagle with a gear wheel in one claw and lightning bolts in the other — and its slogan, “We Do Our Part,” were everywhere. But two years later, the Supreme Court ruled in a famous case, Schechter Poultry  Corp v. United States, that the bill violated both the separation of powers doctrine by delegating legislative authority to the president and the commerce clause.

While the court at that point had a majority of conservative justices (two years later FDR would try to pack the court to get rid of it), the decision was unanimous. Justice Louis Brandeis, no conservative, told aides of the president, “This is the end of this business of centralization, and I want you to go back and tell the president that we’re not going to let this government centralize everything.”

Where is Justice Brandeis now that we really need him?



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