NFIB v. Sebelius and the Transformation of the Taxing Power

In National Federation of Independent Business v. Sebelius, Chief Justice Roberts wrote for a majority of five Justices in holding that the “shared responsibility payment” required by the Patient Protection and Affordable Care Act (“ACA”) constituted an imposition of a “tax” rather than a “penalty.” Thus, even though the Chief Justice and four other Justices had concluded that the provision was not a legitimate exercise of the commerce power, the Court held that it was a valid exercise of the taxing power. The origin of the distinction between taxes and penalties in taxing power jurisprudence is found in the 1922 decision of Bailey v. Drexel Furniture Co., more commonly known as the Child Labor Tax Case. There the Court invalidated a provision of the Revenue Act of 1918 imposing an excise of ten percent on the net profits of all firms employing children under specified ages in various tasks, for longer than specified hours, or at night work. The Child Labor Tax Case was followed in other, similar cases in the 1920s and 1930s, and the Court continued to treat those precedents as good law throughout the remainder of the twentieth century. Chief Justice Roberts did not reject the authority of the Child Labor Tax Case. Instead, he reviewed the features of the Child Labor Tax that had prompted Chief Justice Taft and his colleagues to conclude that the measure imposed a regulatory penalty, and then offered several distinctions between the ACA and the earlier exaction. But a review of the reaction of child labor reformers to the 1922 decision suggests that contemporaries would not have regarded those distinctions as constitutionally significant. For child labor advocates in the 1920s did not believe that if they revised the measure to remove those objectionable features, the tax would then pass constitutional muster. Instead, they regarded the idea of such a constitutional excise as hopeless, and turned their attention to an unsuccessful effort to amend the Constitution to permit Congress to enact federal child labor legislation. This Article proceeds as follows: Part I provides an overview of the relevant twentieth- century taxing power precedents. Part II reviews the decisions of the lower federal courts concerning the construction and constitutionality of the ACA as a taxing measure. Part III canvasses the arguments made in the briefs submitted to the Court, observing that the decisive taxing power issue received scant attention from the parties. Part IV scrutinizes Chief Justice Roberts’s efforts to distinguish the Child Labor Tax Case, concluding that if the assessment of that decision by contemporary observers was accurate, each of those distinctions is insufficient. Part V draws on the contemporaneous analysis of Professor Thomas Reed Powell to isolate the core principle emerging from the Child Labor Tax Case and its progeny: that a nominal tax is in fact a regulatory penalty where it imposes an exaction triggered by departure from a detailed and specified course of conduct, and the exaction is sufficiently onerous to induce those engaged in the targeted conduct generally to alter their behavior. Part VI presents an argument, not considered by the Court, that the ACA might be understood to impose a regulatory penalty so defined. If that understanding is correct, then the Court may have effectively overruled the Child Labor Tax Case and its progeny sub silentio, thereby substantially transforming taxing power doctrine. Part VII explores an alternative, albeit considerably less likely possibility: that contemporary child labor reformers misunderstood the Child Labor Tax Case, and could have successfully revised and defended a new Child Labor Tax by altering one or more of the distinguishing features identified by Chief Justice Roberts. If that is so, then that unfortunate generation of social activists squandered fifteen years in fruitless pursuit of a constitutional amendment authorizing Congress to regulate the labor of children, when a much easier and more expeditious solution lay right before their eyes

The Jurisprudence of the Hughes Court: The Recent Literature

The balance of this Article is devoted, after a fashion, to an exploration of the extent to which the recent literature on the Hughes Court seeks to incorporate the internal point of view. In Part I, I seek to identify the historiographical premises undergirding each author’s treatment of the subject. In Part II, I explore how those historiographical premises are reflected in each author’s treatment of the substantive development of constitutional doctrine during the period. In Part III, I examine the ways in which those historiographical premises inform each author’s analysis of the causal forces driving that doctrinal development. Part IV concludes

Formalism and Realism in Commerce Clause Jurisprudence

This Article attempts a reconceptualization of developments in Commerce Clause jurisprudence between the Civil War and World War II by identifying ways in which that jurisprudence was structurally related to and accordingly deeply influenced by the categories of substantive due process and dormant Commerce Clause doctrine. Antecedent dormant Commerce Clause jurisprudence set the terms within which Commerce Clause doctrine was worked out; coordinate developments in substantive due process doctrine set limits upon the scope of Commerce Clause formulations and thus played a critical and underappreciated role in maintaining the federal equilibrium. The subsequent erosion of those due process limitations vastly expanded federal power and prompted a crisis in Commerce Clause jurisprudence that was ultimately resolved by adoption of a political process approach to both affirmative and dormant Commerce Clause adjudication. The categories that had unified affirmative and dormant Commerce Clause jurisprudence were abandoned, decoupling the two lines of doctrine and rendering them no longer developmentally interdependent. The two lines went their separate ways, economic substantive due process disappeared, and the enterprise of interdoctrinal coordination that had held a vast body of constitutional law together was lost to history. We continue to study the development of these lines of doctrine in our Constitutional Law curricula, but we do so in an ahistorical manner that obscures understanding. We study the development of doctrine topically rather than synchronically, wresting lines of doctrine from the related doctrinal contexts in which they developed. Such decontextualization, in this case as in others, is a surefire method of making the entire undertaking look preposterous. Looking back at this jurisprudence from the vantage and through the categories of our contemporary constitutional sensibility, it becomes difficult to understand how any intelligent person could ever have taken the enterprise seriously. Yet a very great many clearly did. This piece seeks to understand why and how that could have been, while at the same time explaining why the enterprise unraveled in the way it did when it did. What emerges, I hope, is a new way of thinking and teaching about constitutional development in this critical period

Lochner, Liquor, and Longshoremen: A Puzzle in Progressive Era Federalism

In 1890, the Supreme Court shocked and thrilled the civilized world with the announcement that dry states could not prohibit the sale of liquor shipped in from outside the state. So long as the out-of-state goods remained in their original packages, the Court held they retained their character as interstate commerce subject only to federal regulation. The consequences for the cause of local sobriety were, predictably, catastrophic. The proliferation in temperance territory of original package saloons, at which one could purchase liquor free from the superintendence of local liquor authorities, was appalling to dry eyes. Members of Congress immediately proposed bill to authorize the states again to regulate such sales. It was enacted only over strenuous objections that such legislation unconstitutionally delegated congressional authority to regulate interstate transactions and thereby authorized unconstitutional disuniformity in the regulation of interstate commerce. While the Court would consistently approve this and other similar congressional legislation, the debate over constitutional constraints on such congressional authorizations would persist over the course of the next half-century. It is only fairly recently that such measures became unexceptionable. A parallel debate unfolded in the more recondite domain of admiralty, with strikingly different results. In 1917, in the controversial case of Southern Pacific Co. v. Jensen, the Supreme Court held that New York’s workmen’s compensation statute could not constitutionally apply to workplace injury sustained over navigable waters. The Court relied upon its dormant Commerce Clause decisions in the liquor context in holding that such an application of the state statute would interfere with the uniformity of maritime law contemplated by Article III\u27s grant of admiralty jurisdiction to the federal courts. Yet when Congress enacted legislation authorizing the application of state workmen\u27s compensation statutes to maritime workplace injuries, the Court invalidated the statute on the ground that it delegated congressional authority to regulate maritime matters and thereby authorized unconstitutional disuniformity in the substantive law of admiralty. The contention that had failed in the Commerce Clause context prevailed in admiralty. This curious asymmetry in the Court\u27s federalism jurisprudence has never been satisfactorily explored. Admiralty scholars, content for the most part to explain Jensen and its progeny as manifestations of judicial hostility to worker-friendly Progressive legislation, have paid scant attention to cognate developments in Commerce Clause jurisprudence. Similarly, historians of constitutional federalism, perhaps viewing admiralty jurisprudence as an occult science, have largely neglected the field. Yet an excursion into interdoctrinal comparative law promises to shed new light on both subjects. This article challenges the traditional interpretation of the Jensen line of cases, while at the same time integrating these developments in admiralty law into the larger story of cooperative federalism and legal and social reform in the Progressive Era. In addition to offering a reinterpretation of these leading admiralty decisions, the article aims to identify the salient features of the political and constitutional landscape within which distinctive forms of cooperative federalism emerged in the Progressive Era, and to illuminate the manner in which those features helped to shape the asymmetric constitutional law of federal-state cooperation

Mr. Dooley and Mr. Gallup: Public Opinion and Constitutional Change in the 1930s

Scholars interested in the development of political and constitutional culture during the 1930s sometimes draw inferences about popular preferences on various issues of social and economic policy from the results of presidential and congressional elections. A review of contemporary public opinion polls taken by George Gallup for the American Institute of Public Opinion and by Elmo Roper for the Fortune Magazine survey offers a more granular understanding of popular views on the public policy issues of the day. This article canvasses all of the public opinion polls taken by Gallup and Roper between 1935, when they began publishing their results, and 1940, on five major areas of public concern: labor; federal regulatory power; redistribution; fiscal policy; and relief and social security. The poll results reveal public preferences that are far more politically moderate than some have inferred from the election returns. The results also show that comparatively little change in constitutional doctrine was necessary in order to accommodate those popular preferences. This in turn helps to rationalize, if it does not explain, the consistent popular aversion to proposals to limit the power of the Supreme Court, as well as the persistent public opposition to President Roosevelt\u27s ill-fated Court-packing plan

Grover Cleveland Backster Jr - The Passing of a True Pioneer

"“In 100 years, who, if anybody, will know your name?” We have probably all been asked that question at some point in our lives, and the honest answer for me is, quite simply, nobody is going to know who I was. While that is true for the vast majority of us in this big world, I do not believe the same can be said for Grover Cleveland Backster, Jr, or, as most of us knew him, Cleve. Cleve is undeniably one of the greatest icons of our profession, and for that reason we take this opportunity to refl ect upon, celebrate and honor the life of one of our most accomplished members."(...

The Clerks of the Four Horsemen

The names of Holmes clerks such as Tommy Corcoran and Francis Biddle, of Brandeis clerks such as Dean Acheson and Henry Friendly, and of Stone clerks such as Harold Leventhal and Herbert Wechsler ring down the pages of history. But how much do we really know about Carlyle Baer, Tench Marye, or Milton Musser? This article follows the interesting and often surprising lives and careers of the men who clerked for the Four Horsemen - Justices Van Devanter, McReynolds, Sutherland, and Butler. These biographical sketches confound easy stereotypes, and prove the adage that law, like politics, can make for strange bedfellows

Toxic and Nontoxic Leadership: Examining the Relationships Among Variables in the Toxic Triangle

The purpose of this combined quantitative experimental and ex post facto survey study was to explore the relationships between followers\u27 perceptions of toxic and nontoxic leadership and how those relationships are associated with followers\u27 self-reported follower variables, specifically, general self-efficacy (GSE), work engagement (WE), and job satisfaction (JS) with and without any effects of Leader-Member Exchange (LMX) in-group/out group status, organizational culture (OC), workgroup cohesion (WGC), and follower sex. Together, the three domains of the toxic triangle (leaders, susceptible followers, and environment) are believed to covary to support toxic leadership. Variables from all domains were assessed to explore how they support toxic and servant leadership. The overarching framework was Conservation of Resources (COR) Theory, which predicts that servant leadership and a positive environment provide followers with resources, and toxic leadership and a negative environment deplete resources. COR Theory predicts OC and WGC (environmental variables) could vary with the effects of either leadership type, which should be reflected in followers\u27 self-reports of WE and JS. Participants with exposures to toxic and nontoxic leaders were randomly assigned to rate their most recent toxic or nontoxic leader. Those exposed to only one type rated their most recent leader. Existing scales were used to measure toxic and servant leadership, WE, JS, LMX, OC, WGC, and GSE. COR Theory\u27s predictions were generally supported. GSE was found to moderate the effects of toxic/servant leadership on JS, and OC and GSE also interacted positively. In the presence of the covariates, WGC was not a significant explanatory variable