Are Unemployment Benefits Ripe For Attack?

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The GOP candidate for senator from Alaska, Joe Miller, is being roasted on the Internet for declaring that it is unconstitutional for the federal government to be taxing Americans to pay for unemployment benefits. This came up when he was interviewed on television Sunday by Chris Wallace, to whom Mr. Miller responded with memorable clarity. Based on the straightforwardness with which Mr. Miller dealt with Mr. Wallace’s questions, we predict that if he wins his Senate seat he will emerge as a national leader.

The Alaskan does not deny the importance of the contract that is in effect between the government and the millions who have come to depend on Social Security and federal unemployment payments. What he is arguing is that these are duties that belong, if they belong anywhere, to the states. For the record, a lot of people agree with him, including a number of Supreme Court justices. It may yet be that, as our country bores down to constitutional bedrock in the great political struggle under way today, a new generation of justices will take a new look at the question.

There is no doubt that the majority of the Supreme Court of the United States has long differed with Mr. Miller. The Nine delivered their opinion — or opinions — during the depths of the Great Depression, when they ruled in three cases handed down on the same day. The Court’s decisions were a part of what the historians call the “constitutional revolution” of 1937. That “revolution” followed by only a few months the unveiling, in February of that year, of President Roosevelt’s scheme to pack* the court. The court-packing scheme had been hatched after the nine justices, in a unanimous ruling, struck down a centerpiece of the New Deal known as the National Industrial Recovery Act.

What the court ruled in its Social Security and unemployment cases was that the Congress had the power to get into such matters under the the clause that gave it the power to lay and collect taxes, duties, imposts and excises to provide, among other things, the general welfare of the United States. Not all of the decisions were unanimous. The key unemployment decision, Steward Machine Co. v. Davis, which was written up by Justice Cardozo, had four dissenters, Justices Butler, Sutherland, Van Devanter, and McReynolds, who became known as the “four horsemen” for their conservative opposition to, among other things, the New Deal.

Butler called the federal unemployment law “repugnant to the Tenth Amendment,” in that the Constitution granted to the Congress no such power as unemployment payments. Moreover, it specifically reserved to the states, or to the people, all powers not granted to the Congress. Butler’s point was exactly that of Alasaka’s Mr. Miller. Our point here is not to argue the particulars of Steward Machine, or even of unemployment benefits, but merely to recall how sharply divided the Supreme Court was. It was far more sharply divided than when it decided, say, Plessy v. Ferguson, which upheld segregation on a vote of eight to one. Plessy still got overturned when wiser court was eventually in place.

* * *

Could that ever happen with unemployment? We don’t mean for a second to compare unemployment insurance with separate but equal racism. We do mean to say that the court, in upholding unemployment insurance, took a hard look at not only the constitutional principles but also the facts of unemployment. It made a point of it. We have a lot more experience with unemployment insurance now, including a growing view that it provides incentives to delay an economic recovery and that it has led to an involvement of the federal government in the everyday fabric of economy that it is hard to imagine being countenanced by the Founders of America. Mr. Miller of Alaska is no dummy. He is a West Point-educated, Yale Law School graduate who is prepared to “put the hay down where the mules can get to it,” as a celebrated editor** once described plain language. In confronting the constitutional basis of federal unemployment insurance, Mr. Miller has opened up a debate for our time.


* The scheme was to add an additional justice to the Court for each current justice over the age of 70 1/2; it failed in the Senate.

** Ralph McGill of the Atlanta Constitution.

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