Home / General / The Key Precedent for the Anti-ACA Argument

The Key Precedent for the Anti-ACA Argument


Andrew Koppelman is correct that Hammer v. Dagenhart would be the most obvious precedent for a Supreme Court decision striking down the ACA:

Both then and now, challengers to the statutes had to propose that the Supreme Court invent new constitutional rules in order to strike them down. At the time it considered the issue in 1918, there was nothing in the Supreme Court’s case law that suggested any limit on Congress’s authority over what crossed state lines. On the contrary, the Court had upheld bans on interstate transportation of lottery tickets, contaminated food and drugs, prostitutes, and alcoholic beverages.

That’s why the Supreme Court’s invalidation of the law in 1918 astounded even those who had most strenuously opposed enactment. Hammer v. Dagenhart declared—in tones reminiscent of the Broccoli Objection to Obamacare—that if it upheld the law “all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and, thus, our system of government be practically destroyed.” Justice Oliver Wendell Holmes, dissenting, wondered how it could make sense for congressional regulation to be “permissible as against strong drink but not as against the product of ruined lives.” The Court responded that unlike all the contraband that it had permitted Congress to block, the products of child labor “are of themselves harmless.” This meant a completely novel constitutional doctrine: The Court took unto itself the power to decide which harms Congress was permitted to consider when it regulated commerce.


What the Court actually accomplished in 1918 was to thwart democracy and consign large numbers of children to the textile mills for more than two decades. Health care is another context in which the fear of federal power creates a serious risk of ravaging the lives of large numbers of actual people. If the law is upheld, no one is going to be forced to buy broccoli. But if the law is struck down, large numbers of people will die of preventable or treatable diseases, or be bankrupted by medical expenses.

Of course, some Tea Partiers are indeed proud to say that the shoe made with child labor fits.

Another key reason the analogy works is that Hammer was really a “liberty of contract” case in disguise, like arguments against the ACA. The Supreme Court’s inconsistent application of commerce clause restrictions during this area made it clear that they objected to the ends, not the means, of the bans on shipping goods made with child labor. If they approved of the ends, the use of federal power was fine. In both cases, “state sovereignty” is not the real animating issue.

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  • c u n d gulag

    Is this SC paving the way BACK to approving child labor?

    Newt will be soooo excited!
    School janitors – eh… not so much.

  • Murc

    Dagenhart has always astonished me in its breathtaking mendacity.

    Congress has the explicit and unreserved power to regulate commerce that occurs between states. There’s nothing in the text to suggest there are brakes on this power other than where it would come in conflict with other constitutional rights. They decided to exercise this power to ban a certain class of product from crossing state lines at all. If they decided it was illegal to transport adorable puppies or life-saving medicine across state lines, that would be perfectly constitutional as well.

    I’ve got my issues with a lot of commerce clause jurisprudence, but Dagenhart hits the hat trick; its bad law, bad policy, AND was wrongly decided.

    • Scott Lemieux

      Yeah, I think when he was drafting his dissent Holmes must have felt like Obama responding to that 5CA wingnut. I’m surprised he didn’t invent comic sans so he could just quote key passages from the majority in it and then just write “you people are fucking morons” on it before sending it to his clerk.

  • Hogan

    Jack: What have children ever done for us?

    Kenneth: Well, they make our shoes and wallets.

  • ODB

    Another interesting parallel is that Hammer said the commerce clause gives Congress the power to regulate commerce, but not ban certain types of commerce.

    Now they are saying the commerce clause gives Congress the power to regulate commerce, but to create commerce.

    • ODB

      “but *not* to create commerce.”

    • rea

      Hammer said the commerce clause gives Congress the power to regulate commerce, but not ban certain types of commerce.

      I think we can be fairly confident that the present Supreme Court is not going to adopt a rule that renders federal drug laws unconstitutional.

      • R Johnston

        I am confident that, if they overturn the ACA, they will adopt adopt a rule that is coherent only to the extent that it is interpreted as rendering federal drug laws unconstitutional. The Supreme Court will intend incoherence rather than the invalidation of federal drug law, but how a lower court applies an incoherent standard will be beyond the Supreme Court’s control. Sure, when some drug case makes its way up to the Supreme Court it would rule in favor of Federal drug laws, but that says nothing about the “rule” adopted by the Supreme Court in overturning the ACA.

        • ODB

          Another parallel to Hammer. Hammer says of course it is ok to ban drugs, but child labor is a step too far.

  • Lee

    IMO, if the GOP and other members of the American right want to return us to the Gilded Age than they should be required to dress in period custome and have period haircuts. It will be a visual representation of the ridiculousness of their thoughts.

    More seriously, it is getting harder and harder to grasp the thought patterns of conservatives. It seems to be based on taking a sociopathic satisfaction on inflicting misery on millions of people just because while making some attempts to hide this behind some foolish but deep looking thought. Its the thinking of a bully who thinks that he needs some sort of justification for his violence.

  • Holden Pattern

    Watch the Wingtard SCOTUS suddenly find the Commerce Clause again when federal law can be determined to set a ceiling on the protection of individuals instead of a floor.

    • You mean when they decide that state-level environmental protection laws are invalid?

    • Heron

      Didn’t they already do that when they validated the law allowing firms to include mandatory arbitration clauses in all of their contracts (thereby invalidating the 7th Amendment guarantee of jury trial in civil suits), or was such a case never adjudicated?

      • Holden Pattern

        Oh, they’ve found it before. They will just find and lose it at convenient intervals.

  • mds

    What the Court actually accomplished in 1918 was to thwart democracy and consign large numbers of children to the textile mills for more than two decades.

    Thwarting democracy? Consigning children to factories? Transparent sophistry with a “liberty of contract” horseshit frosting? Somewhere out there, David J. Bernstein just got an erection.

    • rea

      Actually, this is just the kind of argument Berstein makes–saying that cases stand for propositions entirely different from their holdings, on the basis of what the justices supposedly were “really” thinking. It doesn’t matter what was going on in their judicial heads–the law is what they held.

  • John

    Is it really true that Dagenhart was really about substantive due process and freedom of contract rather than federalism? It was a 5-4 case with an opinion written by Justice Day, who had dissented in Lochner. According to a book on the Taft court that I found on Google Books, Day was genuinely a big believer in joint sovereignty, and generally voted to uphold state regulations of working conditions while opposing federal laws to do the same thing. (Weirdly, there were no justices who were in the majority for both Lochner and Dagenhart. Holmes dissented in both, White and Day dissented in Lochner before switching to support Dagenhart, and McKenna switched the other way for some reason.)

    The insanely limited reading of the commerce clause in cases like E.C. Knight and Dagenhart seems absurd to me, but it doesn’t seem clear that it was completely about freedom of contract. Could this be a case where, for at least some of the justices, the federalism issue was actually significant?

    • rea

      Is it really true that Dagenhart was really about substantive due process and freedom of contract rather than federalism?

      No. Cases stand for their holdings.

    • Scott Lemieux

      The insanely limited reading of the commerce clause in cases like E.C. Knight and Dagenhart seems absurd to me

      The problem is that the Supreme Court wasn’t even consistent about applying this limited interpretation. They were perfectly happy to let federal laws stand if they affected behavior that (unlike child labor) they considered immoral.

      • John

        But Day, specifically, was perfectly willing to uphold state laws that did things like put prohibitions on child labor. And he was the deciding vote and opinion writer in Dagenhart. I’m not sure I could identify what, exactly, was motivating him, but it doesn’t seem to have been a free market purism that insisted that child labor could not be regulated by anyone.

        • Scott Lemieux

          Whatever personally motivated Day, the effect of the decision was to create an “only if it’s something we really don’t like” requirement for the Commerce Clause.

    • Joe

      Yes. Child labor could be banned in states. It is not a “freedom of contract” case. It is a federalism case from a different era where the line between “local” and “national” was different from today.

      [“That there should be limitations upon the right to employ children in mines and factories in the interest of their own and the public welfare, all will admit.” It’s like U.S. v. Lopez on that front.]

      The law threatened a major local labor force in ways that a federal law that merely banned certain illicit items traveling over state lines did not. This is not to justify it. This lawsuit goes further, since even in the formalistic logic of the ruling, insurance and health care continues to take place & cross state lines while it is being regulated.

      The ‘logic’ there is that the child labor stopped by the time the goods crossed state lines. In that respect, overturning the provision here is WORSE.

  • dan

    As Koppelman points out, the other indefensible precedent is Bailey, where the court invalidated a tax designed to accomplish the same thing. Today, there’s a lot of comments from the right about how Obama should have realized that the mandate is unconstitutional, and from the left about how universal health care could be, or could have been, accomplished in other ways that would have been indisputably constitutional — single payer, public option, the same thing as a tax, or an expansion of Medicare combined with this, that, and the other thing — Ezra Klein suggested something a few days ago.

    Poppycock. The argument that the mandate is unconstitutional us just as frivolous as the argument that a single payer system for people over 65 is constitutional while a single payer system for people under 65 is unconstitutional. If the court invalidates this HCR, it would invalidate any HCR, no matter how obviously constitutional such a system may appear today. The mandate was just as obviously constitutional before it became apparent it might pass.

    If the court invalidates PPACA, it won’t be because the court thinks that 30 million uninsured people are a problem that are a local and not national concern, and it won’t be because the court thinks that 30 million uninsured are a problem that doesn’t affect interstate commerce — it will be because the court thinks that 30 million uninsured people aren’t a problem. Period. Just as the court, 90 years ago, thought that there was nothing inherently wrongful about child labor and thus the Congress must have been powerless to regulate it, even if the regulation was a clear exercise of a power the Congress clearly did have.

    • Heron

      I think it rather unlikely that Obama would do it, but I wonder what sort of chances the ACA would have of standing if the Dems just called the SC’s bluff on this. If Obama just said “nope, the SC’s wrong about this and we’re implementing it anyway”, like Jackson and FDR did on a few notable issues, I wonder if they could force it through. I’m sure plenty of State govs would try to prevent it (just look at the blatantly illegal things Texas has been doing by refusing to implement established Medicare programs), but other states would be happy to see the program implemented, and any health insurance company that refused to go along with it in every state could be disqualified from the program entirely, putting them at a significant competitive disadvantage against those who played ball.

  • timb
    • timb

      Well, I used the link thingy…. Now, my whole comment is a link! Cool

      • rea

        You also have to use the /link thingy.

        • timb

          You’re just mad that mine is a pretty blue and stands out and everyone else’s is just boring

          What’s really annoying is that I believe in progress. In this country I see an extremely well-off, very white majority feeling their power slip and actually wanting to return to the Gilded Age and away from the policies which created American brilliance. People like Jonathon Adler need to be respected no more than Rush Limbaugh is, since I don’t pragmatically see the difference between the two of them.

  • To repeat From Child Labor by Hugh Hindman:

    Several years later Reubenn Dagenhart was highly critical of the constitutional rights the Executive Committee had secured for them. What had he and his younger brother gotten out of the lawsuit? ” We got some automobile rides” and “The bought both of us a Coca Cola. That’s what we got out of it he told an interviewer. At age twenty with a wife and child he said, “Look at me! A hnudred and five pounds, a grown man and no education. I may be mistaken, but I think the years I’ve put in the cotton mills have stunted my growth. They kept me from getting any schooling. I had to stop school after the third grade and now I need the education I didn’t get.” Even without education, he seemed to understand his place in history:” It would have been a good thing for all the kids in this state if that law they passed had been kept”

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