Baseball, Politics

Prophets Without Honor

We Should Make Use of the “Formers”

I have always thought it was a statement of the character, decency and political astuteness of Harry Truman that he developed a genuine working friendship with the former president that Democrats still love to vilify – Herbert Hoover.

The photo is of Truman and Hoover chatting it up in the Oval Office about the time President Truman tapped the former president to head what became known as the Hoover Commission; a vast effort in the late 1940’s to reorganize the Executive Branch of the federal government. When Truman asked Hoover, a man still regarded by many as the do nothing administrator who timidly looked on as the Great Depression ravished the economy in the early 1930’s, to head the commission many regarded it as a very strange choice. It was unusual and also brilliant.

Truman also called upon Hoover at the end of World War II for his advice about food relief for a Europe devastated by war. Hoover had made his reputation as a skilled manager of the massive effort to provide emergency food assistance at the end of World War I.

Both men were sharp tongued partisans. Both suffered by comparison to Franklin Roosevelt. Each had something to prove. They became close friends. By the time Truman left office in 1953, the Executive Branch of the federal government has come to look pretty much as it looks today. Truman, with Hoover’s help, had created the modern Department of Defense, the Joint Chief of Staff, the Central Intelligence Agency and the White House Council of Economic Advisers. Truman needed Republican help to get those jobs done and he was smart enough to seek the help – and political cover – the former Republican president could offer.

This little bit of political trivia begs a question: why don’t we use the talents of “former” political leaders more often? In every other human endeavor, experience – having been there and done that – is considered among the most necessary and desirable characteristics. In politics and public policy, once out of office the “former” typically becomes a relic, a footnote of history. It shouldn’t be so.

Think about some of the national politic figures of the recent past whose experience and judgment would be valuable in some capacity today. Bob Kerrey, the former Nebraska governor and senator, served as a college president. Former Oklahoma governor and senator David Boren runs the University of Oklahoma. He’s has a master’s degree from Oxford and was a Rhodes Scholar. Do you think they might have something to add to the national debate about educational improvement?

President Obama did press former Wyoming Sen. Alan Simpson into service to co-chair a deficit commission and then promptly ignored his recommendations. Simpson ought to be in the Cabinet, regardless who sits in the Oval Office. His recent salty opinions about Obama’s “abrogation of leadership” on the deficit make it certain he won’t be asked for more advice by the current White House resident, but I seriously doubt whether any Republican would call on the lanky guy from Cody, either. He’s too blunt, too outspoken, which is just one of the characteristics that would make him so valuable to any president.

I have never been a great fan of former California governor, senator and San Diego mayor Pete Wilson, but his resume alone should get him on any list of “formers” who could help with something somewhere.

The list could go on and on: former governor like Jim Thompson, Mike Sullivan, Marc Racicot, Mike Dukakis and Tom Kean and former senators like Evan Bayh, Bob Graham, Bill Bradley (perhaps he should be NBA Commissioner), Elizabeth Dole and Gordon Smith would all have something to add as formal or informal advisers to any president of Cabinet secretary.

All of these folks have other lives, of course, in law, lobbying, running policy centers. etc. and some have done the occasional stint on this or that blue ribbon commission. Most would gladly answer the call again, particularly if their work and advice were really taken seriously by current elected officials. Ignoring such talent, expertise and experience is a little like being a high school football coach with a retired Vince Lombardi living down the block and not being smart enough to invite him to practice.

I’ve always thought one of the real and enjoyable powers of being president would be the ability to issue an invitation to anyone, literally anyone in the world, to come to the White House for dinner and a talk. If I had that power for just one day, I’d invite the cast of former political characters I’ve mentioned just to hear their take on the issues of the day, which is pretty much what Truman did with Hoover back in 1945.

As historian Donald McCoy wrote in 1990 in the newsletter of the Truman Presidential Library, the two old, experienced, partisan, but very decent public servants forged a lasting bond.

“During the winter of 1962-1963, two old gentlemen exchanged deeply moving letters,” McCoy wrote. “Herbert Hoover wrote Harry Truman that ‘yours has been a friendship which has reached deeper into my life than you know … When the attack on Pearl Harbor came, I at once supported the President and offered to serve in any useful capacity … However, there was no response … When you came to the White House within a month you opened the door to me to the only profession I knew, public service, and you undid some disgraceful action that had been taken in the prior years. For all this and your friendship, I am deeply grateful.’ Truman replied, ‘You’ll never know how much I appreciated your letter … In fact I was overcome, because you state the situation much better than I could. I’ll quote you, ‘For all this and your friendship, I am deeply grateful.'”

It takes a particular type of political courage – perhaps character is a better word – to ask another politician for advice, particularly advice across the partisan boundary, but a little more of that type of courage would make our politics a whole lot more productive.

For that we would all be deeply grateful.


American Presidents, Obama, Oil Spill, Terrorism

Slippery Slope

The Ultimate Act of the Imperial Presidency

At least since 1933, when Franklin D. Roosevelt actually suggested in his first inaugural address that he might need to ask Congress for what he termed “broad Executive power to wage a war”  in order to respond to the economic ravages of the Great Depression, every president – every president – has sought to expand, and has expanded, the authority of the nation’s Chief Magistrate. FDR’s critics suggested he really wanted dictatorial powers or, seemingly more benignly, a vast concentration of power in the hands of the president.

In terms of threats to the Republic and erosion of the basic strengths of the founding document, the steady, unchecked expansion of presidential power dwarfs any other complaint the Tea Party or anyone else has about the country slipping from its Constitutional moorings.

While the impact of Roosevelt’s accumulation of presidential power is still widely debated – it’s clear FDR stopped short of becoming a dictator – there is no doubt the modern presidency vastly expanded in scope from what the founders envisioned during his presidency. FDR set the country, and the White House, on the course to what Arthur Schlesinger, Jr. came to call “the imperial presidency.” There has been little let up since.

Harry Truman in 1952 nationalized the steel industry, or tried to, and Dwight Eisenhower planned and John Kennedy implemented, in perfect hindsight, a crazy plan to invade Cuba.

Lyndon Johnson put the patina of legality on the Tonkin Gulf Resolution in 1964 that gave him license to expand the American war in Indochina with a formal declaration of war. As we now know the resolution provided the Executive Branch with a “legal” fig leaf to expand the war on LBJ’s own motion, which, of course, he did. It’s worth noting that this particular expansion of presidential power took place during an election campaign.

Later in the 1960’s, Richard Nixon expanded that awful war into Cambodia and attempted to do it secretly. Ronald Reagan traded arms for hostages, secretly in the 1980’s. George W. Bush, history will record, used the full and always expanding power of the Executive Branch – including cherry-picking intelligence – to make the case for the invasion of Iraq. The march goes on.

Mostly lost in the daily drama of the Republican presidential campaign, the Occupy Wall Street demonstrations and the on-going economic slump is what may turn out to be one of the most profound expansions of presidential power ever.

On October 14, 2011, the President of the United States of America authorized an unmanned drone strike designed to kill an American citizen living in Yemen. It worked. New Mexico-born Anwar al-Awlaki, usually described as a radical Muslim cleric, died in the strike in a remote corner of the Middle East along with several other alleged Al Quada operatives. Killed along with the cleric was his Denver-born teenage son, 16-year-old Abdulrahman bin Anwar Al Awlaki.

The Obama Administration has justified the killing of U.S. citizens – the real target was the elder al-Awlaki – by producing a still secret legal memorandum that was detailed, to some degree, in a New York Times article on October 8.

The Times reporting noted: “The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.”

Narrowly drawn. Just broad enough to justify, with no formal legal process, no second opinion, no public accounting and in apparent violation of exisitng law, the killing of an American citizen.

The Times noted in a subsequent editorial that the Obama Administration has refused to release the legal analysis or even admit on the record that the analysis exists. There is no information available on how the administration chose the target or why.

OK, I hear you: this guy Awlaki was holed up on Yemen plotting attacks against the United States. Apparently he couldn’t be captured. What are supposed to do – let him wander around presenting a danger to us?

Legitimate questions all that the administration should be answering, but as we prepare to grant the benefit of the doubt to the president in this dangerous times, consider this one chilling line from the Timeseditorial: “The decision to kill Mr. Awlaki was made entirely within the executive branch. The memo was not shared with Congress, nor did any independent judge or panel of judges pass judgment. The administration set aside Mr. Awlaki’s rights to due process.”

It’s been said that hard cases make bad law and this is a hard case. Awlaki was a bad guy and maybe the country is safer without him. Still the plain and honored language of the Fifth Amendment to the United States Constitution helps define the American system of justice from so many others in the world that we rightly and regularly condemn. Amanda Knox’s experience in Italy comes immediately to mind. America, it is said, is a nation of laws. The rule of law matters. The Constitution matters.

Just to refresh your memory, the 5th says: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.’

Due process of law is a fundamental tenant of American jurisprudence. It can’t under any circumstances be simply dismissed,  and secretly so, by two lawyers writing a memo somewhere in the Executive Branch.

Gerald Ford was the first American president to explicitly say our country would not engage in assassinations. American involvement – make that leadership of – efforts to kill Fidel Castro, in part, prompted Ford’s Executive Order. The logic is pretty simple. We target someone for death and the bad guy’s friends are likely to retaliate, which is, of course, exactly what is being threatened.

Without some mechanism, outside the hands of a secret group inside the Executive Branch of the federal government, able to judge the wisdom, necessity and legality of such drastic action, we are left to entirely take the word of the president.

The framers wrote the founding document knowing that the sainted George Washington would be atop the Executive Branch of the federal government. They wrote in protections like the Fifth Amendment precisely because the American system was built on laws, not men. Even Washington’s rectitude wasn’t adequate for those founders to give too much power to any one man.

Congress is, at least in theory, a co-equal branch and should have been since the 1930’s pushing back against more and more power in the hands of the president – every president. Does anyone there care to even ask the question: can a President of the United States really order a killing without so much as even asking around?

Every expansion of presidential power beyond what the Constitution provides is another foot down on the slippery slope. That slope is steeper by the day.



2012 Election, Minnick

The Way It Works

The Press Plays Its Role

Herman Cain is rising in the polls faster than a double crust pepperoni in a hot oven. Add some extra cheese. This guy has the Big Mo. The not always reliable, but always worth a headline Zogby Poll puts him at the head of the GOP pack at 45%. Newsweek has him on the cover this week. What is going on here? Herman Cain?

The former Godfather’s Pizza CEO, talk show host, author and inspirational speaker is having his 15 minutes of presidential fame. All of a sudden Cain is Able, as one headline says. But hold the phone. What is really happening is part of the never ending cycle of an American presidential campaign. The press builds up a candidate and then takes him (or her) back to earth. You heard it here first: Herman Cain will not be the Republican candidate for president.

Cain is just the latest of the GOP wannabees to get the big build-up followed by the rapid slump. Remember Michelle Bachmann? You know your campaign is on life support when you use your lifeline call to get The Donald on the line as she did yesterday in a telephone town hall meeting. Rick Perry went from swaggering Texas governor to immediate front runner to “can he recover” in six weeks. The only question for Cain is how fast the fall?

The GOP candidates debate again tonight in Las Vegas and, I suspect, the storyline from the face-off in Sin City will be that Cain was roughed up and Mitt Romney, the guy who is still most likely to win the GOP nomination, escaped another debate without a scratch.

There is an inevitable rhythm to the coverage of a presidential nominating process. Most everyone – not Ron Paul, however – gets a test run as the candidate on the rise and then the questions begin. Does the guy’s tax plan stand real review? Does he know anything about foreign policy? Is neoconservative in his vocabulary? In Cain’s case it’s hard to believe his much repeated “9-9-9” tax plan can vault him to the nomination when the arbiter of GOP tax acceptability, Grover Norquist, pronounces it “very dangerous.”

Bachmann had her moment and then her comments got the best of her. Perry had his moment and then the jokes began: “this dog is too dumb to hunt” and “Perry’s problem is he suffers from Mad Cowboy Disease.” The Herman Cain moment is upon us. Enjoy it while it lasts. This guy has the staying power of a extra large on a Saturday night in a frat house.

Mitt Romney is the guy who just keeps hanging around and for good reason. He has at least least three things going for him that Cain, Bachmann, Perry, Huntsman and the rest do not. Romney has actually run and won in a tough political environment. Republicans don’t normally find Massachusetts friendly territory. Romney won a statewide race there. He’s done this presidential thing before. Yes, he lost to John McCain in 2008, but he’s been through the primary meat grinder and the rest of the field has not. Finally, his flexible positions on several issues notwithstanding – respected political analyst Charlie Cook says Romney is “unencumbered by principles” – Romney has obviously thought seriously about the big issues. He may be flexible, but he is not dumb.

So, enjoy the pizza man’s moment. It’ll be fleeting. Romney is the man the White House has come to fear and when all the smoke clears about the time Super Tuesday rolls around in March, I’ll bet an extra meat and cheese takeaway, that Mitt is the Man.

There is an inevitability to Romney, too, just as there is the inevitable rise and fall of the rest of the field. Charlie Cook notes that in every presidential election since 1944, Republicans have turned to the candidate who “is next in line.” The Tea Party doesn’t like him, he’s stiff and there are those flip-flops, but Romney is next in line. Soon enough it will dawn on the Republican primary voter that he also has the best chance to take back the White House for the GOP.


2012 Election, Christie, Economy, Minnick

Lost Generation

The Fall of the American Dream

While Herman Cain talks about his “9-9-9” plan to restore the economy and Mitt Romney touts a 59 point plan to do the same, while President Obama’s most recent plan can’t even command enough respect to get a vote in the Senate, the glass half empty crowd wonders if we’ll capable of solving any problem – economic or political.

Case in point: new research from the Washington Post and Bloomberg News paints the American mindset in gloomy colors. As Chris Cilliza notes in the Post, Forty four percent of the folks surveyed “said that it wouldn’t make much difference for their family’s financial situation if President Obama won a second term or if a Republican was elected. Among independents, nearly six in ten (58 percent) said no matter what happens in the 2012 there would likely be little change in their own financial situation.”

Put another way, many, many Americans say we’re doomed to endless political deadlock and prolonged economic stagnation. Welcome to America in the 21st Century.

In a sober piece in last Sunday’s New York Times, David Leonhardt offered the assessment that the current economic – and I would add political – turmoil may be even worse than it seems. In Leonhardt’s view, even during the Great Depression, Americans were inventing, innovating, building things. Not so much now.

“Even before the financial crisis began, the American economy was not healthy,” Leonhardt wrote. “Job growth was so weak during the economic expansion from 2001 to 2007 that employment failed to keep pace with the growing population, and the share of working adults declined. For the average person with a job, income growth barely exceeded inflation.”

Flat wages, not enough jobs, rapidly growing income disparity, a troubled education system, aging infrastructure, debt and default – the litany of American decline, but does it have to be?

Ask those folks in the Post and Bloomberg poll what the problems are and they know – no one has the answer, its all politics. As Cizilla wrote: “The wild swings in the electorate are directly attributable to a belief that neither party really knows what it’s doing and so once one side is given a chance for two years and nothing changes, voters — especially independents — are more than willing to give the other side a try. And then when that side produces few results, the cycle repeats itself.”

We are slipping into a year of political campaigning that, based upon what we’ve seen so far, is likely to produce a mostly irrelevant and depressing debate about the country’s real problems and what the real solutions might be.

A little over a year from now someone will be elected. Someone always is. But the current level of debate – and the almost total inability of our politics to engage on what is really important – brought to mind a piece I read years ago in the Wall Street Journal. The Journal’s Dorothy Rabinowitz won a Pulitzer Prize for commentary for a column she wrote in 2001 entitled “The Campaign Speech You’ll Never Hear.”

Here’s a key sentence, Rabinowitz quoting a politician who, sadly, doesn’t exist on the presidential campaign trail today.

“I would say they’ve lowered the bar a lot for the highest office in the land, and I’m terrified to think how much, when I let myself think about it at all. My opponent and I — this is the best America can do? One of us is going to stand up and be sworn in as the new president of the United States? I suppose others in my shoes have had the same feeling, so maybe it’ll all work out.”

Maybe. The glass seems half empty.


Afghanistan, Grant, Idaho Media, Journalism

Old School

Pat Murphy, 1929 – 2011

I didn’t know Pat Murphy well. I wish I had known him better. What I did know and observe firsthand about the former Arizona Republic editorial page editor, columnist and publisher I liked – a lot.

Murphy died last week in Idaho where he had retired – but where he kept on writing and reporting – after his long career in Arizona.

Pat Murphy was, in a day of Twitter, silly cable news and more and more vacuous news coverage, old school. He was a newsman and nothing sexist is meant by that term. Writing in the Republic last week, columnist E.J. Montini, recalled Murphy’s tenure as publisher and the fact that he had replaced a man who was forced to resign the job because it was discovered that he had fabricated a military record that did not exist.

“In a lot of ways,” Montini wrote, “Murphy did for The Republic and Gazette what Gerald Ford did for the White House. (He would hate this comparison.)

“Naming Murphy as publisher almost immediately restored order.

“The first time he appeared in the newsroom after being named to the top job, reporters and editors burst into applause.”

In an editorial, the Republic remembered Murphy as a “brassy, bold, uninhibited, occasionally cantankerous, fearless, opinionated, quick-writing newsman.” They got it just right, I think.

Murphy ran the Arizona daily when day after day the front page was dominated by news of the latest shenanigan pulled by a governor, Evan Mecham, who would eventually be impeached and removed from office. Murphy called the wacky Mecham “brutish” and an “ideological juggernaut.” When Pat resigned as publisher, Mecham called it “good news” and predicted that the paper’s reputation would improve. It seems too obvious to point out that Murphy’s reputation did just fine and Mecham’s name will forever be linked to impeachment.

In one of his last columns for the Mountain Express in Ketchum, Murphy lamented the apparently growing trend of adult violence directed toward children and he offered a sane and sober explanation for why it’s happening: poor parenting.

“Children who grow up in an atmosphere where parental authority is firm and respected,” Pat wrote, “where ethics of truth, honesty and regard for others are emphasized, where spiritual or religious values are important, where learning and education are essential and a work ethic is obvious generally mature into adults who’re social assets.

“Children lacking that nurturing are empty of basic qualities required of a civilized human.”

Murphy was a journalist, a veteran, an opinionated and passionate man; a fellow willing, as the old phrase goes, to comfort the afflicted and afflict the comfortable. He was old school and first class.

Death Penalty, Obits

Playing the Odds

Does the System Work?

On the surface no one would confuse Amanda Knox, the young Seattle woman released yesterday in Italy after spending four years in prison for a murder she says – and much evidence supports – that she did not commit, and Troy Davis, the Georgia death row inmate who died by lethal injection in late September.

The story of the white, middle class Knox, constantly surrounded by supportive friends and family – people sophisticated enough to put and keep her story on the international news agenda – is at one level a textbook case of how good lawyers, good PR and a sympathetic central character can drive a courtroom narrative.

By contrast, Davis, the African-American, high school dropout with a spotty work record never saw his case – and his 22 years on Georgia’s death row – seep into the national awareness until he was literally days from death. Supporters of Davis did succeed in stimulating a certain level of international outrage over what was seen by many as a simple, racially-inspired miscarriage of justice. All appeals failed, as did Davis’ claim that he had not killed a Savannah police officer in 1989, and his execution went forward.

It is charged, with some good reason, that Knox was a victim of a terribly flawed Italian justice system, a system willing to use outdated forensic techniques, as well as a culture that treats women – just ask the Italian prime minister – as less than equal. Davis, until last month, one of about 3,500 Americans on death row, may also have been a victim of a fatally flawed American justice system that can’t treat minorities and the underclass as fairly as it treats the rest of us.

On the morning after Amanda Knox was released from her Italian prison, I’m betting most Americans believe – I do – that justice was finally done in Perugia. Do I – and can we – have the same sense of certainty about the 34 executions that have taken place in the United States so far in 2011? What if just one of those death row inmates – Troy Davis or someone else – had been a victim of the bad process, and even the bad motives that improperly imprisoned Amanda Knox?

When I saw the pictures yesterday of Amanda Knox going free I also saw the image of those who protested Troy Davis’ execution in Georgia. Two cases, two very different people from very different backgrounds, two starkly different outcomes.

I also went looking for the starkly elegant, yet at the same time disturbing, language the late Supreme Court Justice Harry Blackmun used to describe a lethal execution in 1994.

In his famous dissent in a Texas death penalty review case – Texas has more than 300 on its death row, 40% black, 30% Hispanic – Blackmun wrote that, “from this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored…to develop…rules that would lend more than the mere appearance of fairness to the death penalty endeavor…Rather than continue to coddle the court’s delusion that the desired level of fairness has been achieved…I feel…obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies…”

Blackmun was writing, as he noted, 20 years after the Supreme Court had  “declared that the death penalty must be imposed fairly and with reasonable consistency or not at all, and despite the effort of the states and courts to devise legal formulas and procedural rules to meet this…challenge, the death penalty remains fraught with arbitrariness, discrimination…and mistake…”

Amanda Knox spent four years in jail in Italy for a crime she says she did not commit. Mistakes were made. The Italian justice system is flawed. Good lawyers and much publicity kept the case alive. Justice was late but finally done.

Mistakes were made. It begs the question: how can we be so certain our justice system works with the precision of a Swiss watch? Can we play the odds with perfection? What about arbitrariness, discrimination and mistake?

Truth is we can’t be certain and there is plenty of evidence we haven’t always been right. Amid the rejoicing as Amanda heads home to Seattle, the Knox case should also be cause for reflection, reconsideration and reform right here at home.


2014 Election, 2016 Election, American Presidents, Andrus, Borah, Campaign Finance, FDR, Health Care, Obama, Supreme Court

2012 Wildcard

Elections and the Court

When the Obama Justice Department announced last week that it had asked the United States Supreme Court for an expedited review of the Affordable Care Act (ACA) – Obamacare, health care reform, etc. – the government’s lawyers confidentially predicted that the current court would uphold the law. In making that claim the Justice Department cited several precedents in our history where the Supreme Court has reviewed and upheld once controversial laws that have now become established features of American life.

“Throughout history,” the Department said in a statement, “there have been similar challenges to other landmark legislation, such as the Social Security Act, the Civil Rights Act and the Voting Rights Act, and all of those challenges failed. We believe the challenges to the Affordable Care Act — like the one in the 11th Circuit — will also ultimately fail and that the Supreme Court will uphold the law.”

The Justice Department release represents more than a little wishful thinking and an even larger dose of selective historical memory. At least once before, in a case that has some striking parallels to what is unfolding with the Affordable Care Act, the Supreme Court considered and struck down major provisions of a Democratic administration’s domestic agenda. It happened in 1935 and the political fallout, the subsequent election campaign and the president’s policy response produced the greatest Constitutional confrontations since the Civil War.

Franklin Roosevelt signed the National Industrial Recovery Act (NIRA) into law on June 16, 1933. The law created, among other things, the National Recovery Administration, symbolized by the “blue eagle” that appeared on signs in store windows, in propaganda-like newsreels and in vast demonstrations staged in major U.S. cities.

The NIRA granted to the president vast powers – unprecedented really – to promulgate industrial codes of fair competition. The effect was to form industrial cartels that were not suppose to engage in price fixing, but came very close to doing just that, as well as turning the capitalist concept of competition on its head.

The code provision had been controversial, particularly in the Senate, where some legislators who abhorred “monopoly” – senators like Borah of Idaho and Wheeler of Montana – were concerned the law essentially did violence to the Sherman Antitrust Act, a law on the book since 1890.

The NIRA also established rights to collective bargaining, regulated working conditions and some wages and, in a separate section, created the Public Works Administration (PWA), the major infrastructure investment vehicle of the New Deal.

There were many problems administering the complex NIRA and the inevitable legal challenges began almost immediately. Eventually on May 27, 1935, a unanimous U.S. Supreme Court ruled major parts of the NIRA unconstitutional. Roosevelt was stunned and outraged, even though FDR’s Justice Department, like Barack Obama’s Justice Department with the health care legislation, had tried to pick the case and the timing to take the issue to the nation’s highest court.

Writing for a united Court, that like today’s Court frequently found itself sharply divided between conservatives and liberals, Chief Justice Charles Evans Hughes, zeroed in on Constitutional problems with two features of the law that FDR considered the centerpiece of the domestic agenda he hoped would lift the economy out of the Great Depression. Like the arguments around the Affordable Care Act, the issue in 1935 was the Commerce Clause of the Constitution.

As Hughes wrote, “If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the State over its domestic concerns would exist only by sufferance of the Federal Government.” Sounds a lot like the arguments over the health care bill’s individual mandate provision.

The ruling in the Schechter Poultry Corporation case that brought down the NIRA is today generally considered a very narrow 1930’s interpretation of the Commerce Clause and FDR certainly thought so. He famously complained to a room full of reporters gathered in his office that the Supreme Court had adopted a “horse and buggy” view of the nation’s economy and particularly of interstate commerce. The Commerce Clause is at the heart of the ACA debate because critics charge a central federal government has no business mandating that individuals must purchase health insurance. We’ll see. 

It would be unfair to stretch the parallels between 1935 and 2011 too far and it is possible the Supreme Court my opt for an artful dodge to avoid deciding the health care case before next year’s election. It is also true that we live in vastly different times, although the politics around the Great Depression feel a good deal like the politics around the Great Recession.

Since 1935, the Court has vastly expanded our understanding of what constitutes interstate commerce and the ruling Roosevelt disliked so much came more than a year before he sought re-election to a second term. Barack Obama, by contrast, may get his ruling on the Affordable Care Act smack dab in the middle of his re-election effort and, while the NIRA was controversial it had little of the polarizing political impact of health care.

After his initial “horse and buggy” zinger had been delivered, Roosevelt generally avoided mentioning the Court, while he privately seethed about the “nine old men” who had dismantled his handiwork in the midst of a national economic crisis. Once safety re-elected in 1936 Roosevelt came down on the Court with a ton of bricks, serving up his ill-fated plan to “pack the court” by adding up to six new justices who would presumably liberalize a reactionary court. The Congress refused to go along with such an overreach and Roosevelt suffered a massive defeat right on the heels of winning a second term in a landslide.

One way or the other, Obama looks to get his chance to be pleased or disappointed by the Supreme Court in the middle of a high stakes campaign season. Most Court analysts say they count four votes in favor of upholding the controversial law and four against. Obama may think about issuing a quick invitation for a golf game to Justice Anthony Kennedy. By all accounts he’ll decide the fate of the Affordable Care Act.

There is one more historical footnote related to the 1935 case that, if he’s thought about it, might well give former law professor Obama some political heartburn. In 1935 the most liberal member of the Supreme Court was the venerated Justice Louis Brandeis, who history records as one of the all-time great justices. Roosevelt was stunned when the man he called “Isaiah” ruled against him.

Robing up before the Court delivered its decision on the NIRA, Justice Brandeis told Roosevelt aide Tommy Corcoran, “This is the end of this business of centralization, and I want you to go back and tell the president that we’re not going to let this government centralize everything.”