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Won’t Get Fooled Again



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Ho-hum: another day in Supreme Court, another brick in the wall of the Bush Legacy.

But really, we’ve seen this movie before — it’s a remake of the smash 1937 hit, Helvering v. Davis, which, among other decisions from that year, upheld the constitutionality of the Social Security bait-and-switch “tax,” in part by citing the now infinitely elastic General Welfare clause. Wrote Justice Cardozo:

Congress may spend money in aid of the ‘general welfare’…There have been great statesmen in our history who have stood for other views…The line must still be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in advance of the event…The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment. This is now familiar law.

But the back story, as we say in Hollywood, is the key. Then, an intimidated Court, still smarting from FDR’s brushback pitch, handily reversed its anti–New Deal course when an associate justice, who had been the swing vote for the conservatives in a series of decisions, changed sides on a minimum-wage case, a move called “the switch in time that saved nine.”

His name, in an irony of history, was Owen J. Roberts.



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