The Courthouse Crusade Against Government

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Back to the 1930s

Currently, the top priority of anti-government legal activists is a constitutional challenge to President Obama’s health care reform bill. Several suits have been brought in the federal courts alleging that the bill’s requirement that all individuals have health insurance violates the Constitution. One federal district court judge has already ruled in favor of this argument and it seems inevitable that this challenge is headed to the Supreme Court. But while this legal challenge has garnered a great deal of publicity, what has often been ignored is that this particular effort is only the tip of a very deep iceberg. Conservative legal activists have been mounting a wide-ranging constitutional attack on the powers of the federal government, an assault that could undermine much of the progressive legislation passed during the last 75 years.

For some years now, right-wing legal scholars and conservative judges have been trying to reinterpret parts of the Constitution in their efforts to undermine the regulatory powers of the federal government. Their main target has been the so-called “Commerce Clause” of the Constitution, the passage that empowers the federal government to regulate commerce between the states. Before the New Deal, the federal courts had a very strict interpretation of this clause that confined Congress to regulating only those activities that directly involved interstate commerce. However, a 1937 Supreme Court decision – Wickard v. Filburn – created a broader interpretation of this clause that gave Congress the power to regulate many activities located within states, such as factories and employer-employee relations.14 This has been the conventional interpretation of this clause for over 70 years and it is the constitutional basis for many modern federal laws, including environmental regulation and much of the legislation that protects the rights of women, workers, and minorities.

Anti-government judicial activists are now committed to overturning this interpretation of the Commerce Clause, and with it many of the elements of the New Deal. Specifically, by returning to the narrow pre-1937 interpretation, they hope to overthrow such programs as federal minimum wage laws and requirements that employers participate in Social Security.15 Despite the radical nature of this plan, it is clear that these conservatives have some sympathizers in the federal judiciary and that they are making some progress in their efforts. One federal district judge blocked the federal government from enforcing toxic waste cleanup requirements, because he decided that the chemical manufacturing site involved was really just a local real estate matter, not an economic activities subject to federal control. In 2003, U.S. Court of Appeals for the 9th Circuit issued three decisions that gradually narrowed what was constitutional under the Commerce Clause.16 Also, the Supreme Court itself has declared that the Gun Free School Zones Act exceeds Congress’ constitutional powers.

On the Supreme Court, Justice Clarence Thomas has often expressed sympathy with this revisionist attempt to severely restrict the powers of the federal government. In three separate cases he has argued that the federal government's attempts at regulation are "at odds" with the Constitution. If his views were to become common on the court, this would put in jeopardy a wide range of current laws, including the Americans with Disabilities Act, the federal minimum wage, bans on child labor, and anti-discrimination legislation.

Many legal scholars and political commentators find this a very disturbing trend. Adam Cohen, for example, has criticized what he has called “the campaign to undo the New Deal.”

[C]onservatives are making progress in their drive to restore the narrow view of federal powers that predated the New Deal – and render Congress too weak to protect Americans on many fronts. … In pre-1937 America, workers were exploited, factories were free to pollute, and old people were generally poor when they retired. This is not an agenda the public would be likely to sign onto today if it were debated in an election. But conservatives, who like to complain about activist liberal judges, could achieve their anti-New Deal agenda through judicial activism on the right. Judges could … declare laws on workplace safety, environmental protection and civil rights unconstitutional.17

The Tort Reform Sham

There is another legal strategy being promoted by government haters that is very different from the ones just described. It is a strategy of limiting public access to the courts. It is really a very clever idea: instead of trying to limit the power of the courts, you simply block people’s access to that power. Without access, the power of the courts cannot be used in ways that conservatives oppose. A good example of this attempt to deny access to the courts has been the intense and widespread political campaign to pass legislation on the federal and state levels to limit citizens’ right to sue businesses – under the rubric of so-called “tort reform.” A particular effort has been made to limit people’s abilities to participate in class-action suits. These suits have been one of the most important and useful tools employed by citizens to fight the abuses of business and other institutions. Because of the high expense of litigation and the enormous legal resources of big business, individuals are often not in a position to successfully sue. Class action suits allow harmed individuals to band together and more effectively seek justice. As former United States Supreme Court Justice William O. Douglas has explained: "the class action is one of the few legal remedies the small claimant has against those who command the status quo."18

Class action and other suits have a long history of helping the average American get justice and compensation for wrongs committed against them. They have been successfully used by people in neighborhoods poisoned by toxic waste spills, patients prescribed medicines with undisclosed dangerous side effects, employees who have been victims of systematic racial or sexual discrimination, consumers who have been seriously hurt by defective and dangerous products, people who have lost their savings to fraudulent investment practices, and consumers who paid greatly inflated prices because of monopolistic and unfair business practices. And many people not even directly involved in these suits have greatly benefited from them. Thousands of dangerous products have been removed from the marketplace, thus preventing future injuries and the medical costs associated with them. Our cars and hospitals are much safer due to citizen suits. Millions of dollars have been recovered in suits over various consumer fraud schemes. Perhaps more importantly, fear of lawsuits has prompted many businesses to produce safer products and to behave in more responsible ways to their consumers and their employees. In short, citizen lawsuits have helped to protect us all.

Not surprisingly, however, the business community does not like class-action suits and it has organized a well-funded and highly coordinated campaign to promote legislation that would limit the ability of people to file these kinds of lawsuits. This is how one consumer group described this extensive political effort:

The huge corporate campaign against consumer access to the courts is approaching its 25th year. [It] includes the creation of new trade associations of companies pushing for state as well as federal legislation to limit consumer rights, hundreds of lobbyists pressuring congressional and state lawmakers, the creation of front groups across the country called citizens against lawsuit abuse (whose members are actually businesses), new think tanks such as the Manhattan Institute who hire authors to write books and reports attacking the civil justice system, and strategic television and radio advertising at the state and national level.19

The Republican Party signed onto this effort to limit the public’s ability to sue, especially through class-action suits. In the mid-nineties, Congress passed legislation limiting the courts’ ability to hear class action suits by immigrants seeking to fight against deportation. Another bill limited the abilities of legal services lawyers to bring class actions suits on the behalf of their poor clients. And in 1995, the Republicans passed the Private Securities Litigation Reform Act, over the veto of President Clinton. This law severely restricted investors' ability to sue companies for securities fraud. In doing so, it greatly undermined the ability of investors to hold corporate officials, accountants, and auditors accountable for such activities as deceptive bookkeeping, lying to investors about profits, and other forms of investor fraud. With little threat of investor suits, and with the SEC essentially asleep on the job, it is little wonder that more and more corporate officials soon felt free to cross the line over into illegal and fraudulent behavior. Eventually a whole host of companies, including Enron, WorldCom, ImClone, Global Crossings, Adelphi Communications, Xerox, Merck, Bristol-Myers Squibb, and Qwest were caught engaging in just these kinds of investor frauds – costing their investors billions of dollars in losses.

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