The Commerce Power and National Security

Mary L. Dudziak

Philip Bobbit argues that the Affordable Care Act could be appropriate as a national defense measure, based on Congress’s constitutional power to tax and spend for the common defense. Although he does not make a Commerce Power argument, it is also the case that the broadest uses of the Commerce Power upheld by the Supreme Court (Katzenbach v. McClung and Wickard v. Filburn) involved national defense matters. 

Let’s start with Wickard.  The very date of the case – 1942 – places it squarely within the World War II context (even though the case was argued twice before the Court).  There is much more to it than the date, however.  One thing that got farmer Filburn into trouble in the first place was his confusion over a speech given my Secretary of Agriculture Claude Wickard entitled: “Wheat Farmers and the Battle for Democracy.” 

“Overshadowing everything is the world crisis," Wickard argued in a May 19, 1941 speech (quoted in part in the lower court opinion).

The times through which we are passing will decide what kind of a future the United States will have.  We are determining whether we intend to remain a great democracy, and perhaps a great world power.

We must plan our lives and everything we do in the light of the world situation.  What farmers plant and when they plant it is directly affected by the titanic struggle going on overseas.

Wickard argued that federal control over wheat was crucial, so that the federal government would have a predictable supply.  The U.S. needed to send wheat to England, a wheat-importing country, that was increasingly isolated by the Germans.  Wickard called on farmers to do their patriotic duty and comply with federal law because that would enable the U.S. government to use wheat supplies to help England fight the Nazis.  The speech had confused Filburn about his wheat quota, so it was part of the record before the Court.  This aspect of Wickard is important to the history of federalism.  It helps us to see the post-1937 expansion of federal power not as a defensive reaction to the Court-packing crisis and the politics of the late ‘30s, but instead in the context of the importance of federal control over the economy during war.  A stronger role for the states wilted in the face of war-related national security.  (I’ll add a link to the speech as soon as I have a chance.)

So the national security basis for an expanded Commerce Power was explicitly argued for by the Roosevelt Administration.  What about civil rights?  Dean Rusk, Secretary of State in the Kennedy Administration, wrote that civil rights had “a profound impact on the world’s view of the United States, and therefore on our foreign relations.”  Rusk testified before the Senate Commerce Committee on this issue when the 1963 civil rights bill, which became the Civil Rights Act of 1964, was under consideration. The United States was engaged in a worldwide struggle for freedom, he argued.  At the same time, decolonization led to the independence of former colonies, and the desire of nonwhite peoples to eradicate the idea of white racial superiority. In that context, “in waging this world struggle, we are seriously handicapped by racial or religious struggle in the United States....In their effort to enhance their influence among the nonwhite peoples and to alienate them from us, the Communists clearly regard racial discrimination in the United States as one of their most valuable assets.”  The Civil Rights Act served other purposes, of course, but one critical federal purpose was in U.S. Cold War public diplomacy.  After the Act was passed, the State Department and US Information Agency used it extensively to enhance the worldwide image of American democracy.  (That story is here, and an earlier shorter version downloadable here.)

I will leave to Bobbit the argument that the Affordable Care Act furthers U.S. national security.  If there is a national security basis for the ACA, there is also a well-established history of the use of broad Commerce Powers to further U.S. national security.

Cross-posted at the Legal History Blog.
Posted 5:48 PM by Mary L. Dudziak [link]