Andy Koppelman has another essay, this time in the New Republic, analogizing the litigation over the ACA to the Child Labor Cases. Of course, this is a tried and true rhetorical technique: find a case that is widely despised (Dred Scott, Lochner, Plessy), and analogize current litigation to that despised case.
Just a few points:
(1) Koppelman writes, with regard to child labor, “only the federal government could address the issue, since no state would act on its own.” But I pointed out in response to his last article that every single state did in fact pass laws restricting child labor. Koppelman acknowledges the point, but responds, “This, however, ignores the enormous variation in child labor policy: Some laws were weak; others were ineffectively enforced.” But saying that states chose not to have as strict laws as the federal government, or enforce them as vigorously as the federal government might, is quite different from saying that they couldn’t act; rather, they chose not to act as vigorously as the federal government. That’s what happens when you live in a federal system–sometimes you will think that states are being derelict in their legislative responsibilities; sometimes you will praise the states as laboratories of democracy for their innovations. I think I can safely assume, for example, that Koppelman opposes the federal Defense of Marriage Act but supports states that have recognized same-sex marriage. If the Republicans take control of the White House and Senate in 2013, would he want them to set a national policy on gay marriage via the commerce power? Merely pointing out that states don’t always follow one’s policy preferences is hardly a strong argument against federalism.
(2) Professor Logan Sawyer of the University of Georgia Law School coincidentally has an excellent piece out on SSRN about the origins of Court’s holding in Hammer v. Dagenhart, the case in which the Supreme Court invalidated a federal child labor statute as beyond Congress’ commerce power. The gist of the piece is that Hammer wasn’t a battle between laissez-faireists and Progressive supporters of national regulation. Rather, after the Lottery Cases, which seemed to establish the federal police power, there was debate among Progressives as to whether there were any limits to this power. One side said no, while the other side insisted, for good “Progressive” reasons (in particular, that participation in local governance is a key to good citizenship), that Commerce Clause doctrine must put some limits on federal power. So there is, in fact, a parallel to 1918 today, but the parallel is not that the Supreme Court is poised to just make up some new doctrine while ignoring social conditions. Rather, the parallel is that there is sentiment among people who otherwise recognize a strong role for national government–as four of the five conservatives on the current Court surely do–that despite past precedents granting a broad commerce power, a significant role for state and local governance must be preserved.
(3) Koppelman suggests that Jonathan Adler and I think argue that child labor “isn’t so bad.” I won’t speak for Jonathan, but I think child labor is bad, certainly if we’re talking about pre-teens working in factories (which all the states banned in any event). [What I actually wrote was, "as one would expect, wealthier states, where parents were less likely to be dependent parents on the labor of their children to avoid starvation, passed earlier and stricter legislation, exactly as it should be in a federal system." (And even federal legislation left child labor on farms to parental discretion, in deference to the fact that family farms often couldn’t survive without the children pitching in.)] But there’s always the question of “compared to what?” I don’t want to go off on a long digression about child labor, so I’ll leave it at this. Child labor laws were not motivated solely by humanitarian considerations, and depending on context, could have significant anti-humanitarian consequences. Just consider that child labor laws, including the federal laws that came before the Supreme Court, were not typically accompanied by social welfare legislation providing income support to families whose children were working because the alternative was not having adequate food and housing. [So desperate families could either be malnourished or send their kids off to work in the black market; either way, many kids would be worse off, which provides an explanation of why the poorest states had less stringent child labor laws than what the federal government tried to impose.] Consider also that the wave of national sentiment favoring child labor laws corresponded with a wave of sentiment favoring legislation keeping women out of the workplace, and severely restricting immigration. This was not a coincidence. It shouldn’t really come as a surprise that the history of these matters is rather more complicated than the morality tales we learned in civics class.