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FDR's constitutional precedent for Obama's healthcare law—A Commentary by Luke Norris ’11

The following commentary was published in the UK Guardian on December 15, 2010.

FDR's constitutional precedent for Obama's healthcare law
By Luke Norris ’11

The healthcare law isn't all that's at stake in the judicial battle taking place in the United States. The law stands on the same foundations as many of the great, and constitutional, American New Deal achievements.

The closest historical parallel to the health law is social security. The Social Security Act of 1935 was challenged on remarkably similar grounds to the health law. Shortly thereafter, the first circuit court found it to be unconstitutional. Just days later, the New Deal court heard arguments, and in three decisions, it found the act to be constitutional.

The original Social Security Act provided for both old-age pensions – what we now think of as social security – and for unemployment insurance. The cases before the court, like the healthcare case, focused on the powers of Congress to make such laws. The court found that the problems of insecurity that the act attempted to remedy had "become national in area and dimensions" and that individual states had proven themselves "unable to give the requisite relief".

Many states feared that providing social security or unemployment insurance would put them "in a position of economic disadvantage as compared with neighbours or competitors". They were "paralysed with fear" and the burden was "laid upon the resources of the government of this nation". As the court said, in one of its other decisions of that day:

"When public evils ensue from individual misfortunes or needs, the legislature may strike at the evil at its source."

Congress was thus acting in pursuit of the "general welfare", as the Constitution had authorised them to do.

Today, no one seriously challenges the constitutionality of social security. This has been to the benefit of countless Americans: the act lifted millions of elderly out of poverty, and helped millions of unemployed stay afloat while they sought new work.

And as the scope of the original Social Security Act shows, Americans conceived of security in a broad way during the New Deal. Indeed, the very notion of security they had in mind corresponds perfectly with the healthcare law.

The era was, in many ways, not unlike our own. Then, as now, security was the watchword of the day. John Dewey wrote of the era: "The most marked trait of present life, economically speaking, is insecurity." Roosevelt conceived of social security as "expanding the meaning of freedom by extending assistance to broad groups of needy Americans – the unemployed, elderly, and dependent – as a universal right of citizenship…" Social citizenship, which entailed a public guarantee of economic security, came to the forefront of American discussions.

The struggle for security led to some of the great New Deal achievements – social security and unemployment compensation being two chief ones. But, as FDR himself recognised, those achievements were incomplete. He called for a second bill of rights, which would guarantee, among other things, the right to "adequate medical care" and to "good education", two of the great unfinished projects of the modern era.

These projects were left to us. And as the healthcare crisis grew increasingly dire, and more and more Americans suffered from the insecurity that it produced, Americans took a great step forward in passing the healthcare law. Like the New Deal commitments, it was premised on the notion of guaranteeing economic security, especially in a world where health, prosperity and personal freedom are so linked. It aimed to ensure that Americans have precisely the same security that was won in the New Deal – that is, it aimed to secure us with insurance against life's inevitable crises, whether economic or medical. And it stands on the same constitutional foundations that were laid during the era.

If the supreme court were to follow the path of the recent decision in a federal court in Virginia and call the healthcare law unconstitutional, it would not only challenge nearly a century of precedent, but would threaten to pull away the very foundations of security that Americans have built over the last century.