Cushman on the Limits of the New Deal Analogy

Barry Cushman, Virginia Law, has posted The Limits of the New Deal Analogy.  Here is the abstract:

The past three years of the Obama Administration inevitably have elicited comparisons between the present day and the era of President Franklin D. Roosevelt's New Deal. While frequently illuminating, such comparisons often overlook an important point that many may have forgotten: compared with the major reform initiatives undertaken during President Obama's tenure, a review of the roll call votes reveals that the measures enacted by the New Deal Congresses enjoyed a remarkable degree of bipartisan support. In addition, the Democrats enjoyed large majorities in the House of Representatives from 1933 forward, and a filibuster-proof majority in the Senate after 1934.

These dual luxuries of bipartisan support and electoral dominance had two important implications for the durability of New Deal legislation. First, they guaranteed that in the near term there would be no significant movement within Congress to repeal that legislation. Second, they ensured that if the Supreme Court held such legislation unconstitutional, Congress would get a second bite at the apple. In several instances in which the Hughes Court held that a legislative attempt to address a particular problem did not pass constitutional muster, the New Deal Congresses would have, and would take, the opportunity to reformulate the program to achieve the desired end through means consistent with prevailing constitutional doctrine.

Neither of these conditions obtains today. Congressional Republicans are committed to substantial modification or outright repeal of the Affordable Care Act, and if the Court were to declare all of portions of that Act unconstitutional, there is virtually no chance that it would be enacted in anything like its current form by the present Congress. Moreover, polling data suggest that popular support for the Act is not nearly as strong as it was for programs challenged before the Court in 1937. Court decisions invalidating either the minimum wage or the Social Security Act would have frustrated both the legislative and the popular will. By contrast, polls show the American people favoring repeal or judicial invalidation of all or part of the Affordable Care Act, and the Act as a whole does not enjoy the support of the present Congress. A Court decision striking down the individual mandate therefore would be flouting neither the current congressional will nor present popular preferences. We should bear such important differences in mind when contemplating the extent to which the 1930s provide an illuminating analogy to our present circumstances.