Lilly: Congress, the Court and commerce

As our nation braces for what is sure to be a controversial decision on the constitutionality of the Affordable Care Act, it seems like everything old is new again in the United States Supreme Court. Seventy-five years ago Thursday, on April 12, 1937, the Supreme Court decided National Labor Relations Board v. Jones and Laughlin Steel -- which upheld the constitutionality of the National Labor Relations Act, and established the right of American workers to form and join labor unions. Then, as now, Congress had asserted its authority over an important aspect of the American economy. Then, as now, critics of the new law objected that it was an unprecedented expansion of federal power.

For most of our nation's history, federal courts treated labor unions as criminal conspiracies. Judges believed that if individuals combined to bargain for better wages, hours and working conditions, they were conspiring to rob employers of their constitutionally protected property rights. As America industrialized, corporate employers became bigger and more powerful, but American workers were prohibited from banding together to bargain collectively. Some Americans who did go on strike were even attacked by police and military units.

President Franklin Roosevelt and Congress decided to change that system by passing the National Labor Relations Act in 1935. The law boldly proclaimed that American workers have the right to form and join labor unions and to bargain collectively through representatives of their choosing. Furthermore, it was declared to be the policy of the United States to encourage the practice of collective bargaining.

That was revolutionary thinking in 1935, and employers didn't accept the change quietly. When workers at the Jones and Laughlin Steel Corporation tried to organize, the company responded by firing the union activists. When the government ordered the company to reinstate the workers, the company objected that the new law was unconstitutional.

The company's argument against the act was that nowhere in the Constitution is Congress given the power to regulate labor relations. Congress said it passed the act pursuant to its Constitutional power to regulate interstate commerce. The company responded that the interstate commerce power is not that broad; if Congress' interstate commerce power could include the power to regulate labor relations, they asked, where would it stop?

How the Supreme Court would interpret Congress' interstate commerce power was very much in doubt when the case got there in 1937 -- as it is very much in doubt today. The court had previously struck down key provisions of other New Deal legislation. In fact, Roosevelt had become sufficiently frustrated with the Supreme Court's decisions that he proposed expanding the number of justices until he could get a court that would stop overruling his initiatives.

That confrontation between the court and the president was avoided when the court decided to uphold a more expansive interpretation of the interstate commerce clause. By a five to four vote, the court held that the act was constitutional.

The right of workers to unionize is a fundamental civil right, and the 75th anniversary of the Supreme Court decision upholding it is a noteworthy event in its own right. It has a special significance, however, coming on the heels of last month's Supreme Court argument over the constitutionality of the 2010 health care reform law.

As with the National Labor Relations Act, critics say that the Affordable Care Act is a step too far for Congress' power to regulate interstate commerce. As in 1937, they ask where the limit on Congress' power is.

We await the answer in considerable suspense. But this week, at least, we can enjoy the anniversary of the decision that upheld our right to unionize, and salute the prudence of the justices who made that decision.

Thomas J. Lilly, Jr. is assistant professor and coordinator of the Industrial and Labor Relations Program at SUNY College at Old Westbury.