The 1787 Project

Over the summer, the Supreme Court decided the case of Chiafalo v. Washington about whether a state could remove or sanction a presidential elector for casting a ballot contrary to the expressed will of the voters of the state. According to the Court, it can. On Monday, presidential electors will cast ballots for president, and it will be interesting to see whether there are any faithless electors this cycle. Yet the Chiafalo decision brings up what is perhaps a more important question: can the states voluntarily enter a compact to award their votes to the winner of the national popular vote? Could they use the Electoral College to enact a national popular vote? Conversation about just that question has already begun to pick up.

In this episode, we first look at the Supreme Court's decision in Citizens United v. FEC (2010) and then talk with Mizzou Economics Professor Jeff Milyo about his new co-authored book https://press.uchicago.edu/ucp/books/book/chicago/C/bo51203857.html (Campaign Finance and American Democracy: What the Public Thinks and Why it Matters).

This episode takes a look at three different cases: Reynolds v. Sims (1964) about malapportioned districts; Shaw v. Reno (1993) about racial gerrymandering; and Rucho v. Common Cause (2019) about partisan gerrymandering. According to the Supreme Court, districts cannot be malapportioned or drawn in a way that intentionally groups voters based on race. The practice of intentionally grouping voters based on partisanship is not something the Court is willing to address, however, and Chief Justice John Roberts explains why in his opinion announcement in Rucho.

The short answer of what happened to the Voting Rights Act is that the Supreme Court in Shelby County v. Holder (2013) held that one of the main sections of the Voting Rights Act was unconstitutional. Before getting to the longer answer of why the Court came to that conclusion, we will pick up a theoretical background question: is the United States a republic or a democracy?

The Affordable Care Act of 2010 contained a provision that required most Americans to purchase health insurance or pay a penalty to the federal government. In NFIB v. Sebelius (2012), the Supreme Court took up a challenge to this provision and held that Congress did not have the authority to pass the provision under the Commerce Clause but that it did have the authority to pass the provision under its enumerated power to lay and collect taxes.

After the New Deal and the major cases about Title II of the Civil Rights Act of 1964, there was an open question about the limits of congressional power under the Commerce Clause. The first cases after Wickard v. Filburn (1942) to hold acts of Congress unconstitutional under the Commerce Clause were United States v. Lopez (1995) Morrison v. United States (2000). Together with Gonzalez v. Raich (2005), these three cases put a distinctive mark on the Rehnquist Court's Commerce Clause jurisprudence and set up the more recent constitutional debate about the Individual Mandate provision in the Affordable Care Act.

Title II of the Civil Rights Act of 1964 prohibits racial discrimination in public accommodations. That part of the Act was challenged in Heart of Atlanta Motel v. United States (1964) when the owner of the motel said that Congress did not have the authority to pass Title II of the Civil Rights Act in the first place. In a unanimous decision, the Supreme Court upheld the act as an exercise of Congress' power to regulate interstate commerce.

Justice Owen Roberts' 1937 vote to uphold a minimum wage law is remembered as the "switch in time that saved nine." It came on the heels of Franklin Roosevelt's March 9, 1937, fireside chat, where he criticized the Supreme Court for blocking needed economic reforms and proposed adding a number of justices to the Supreme Court. After the "switch in time," Roosevelt's judicial reform bill faltered and the Supreme Court upheld other major economic regulations passed by Congress. Whether or not Roosevelt's court-packing plan influenced Justice Roberts' vote, the Court's Commerce Clause jurisprudence looked very different after 1937.

Prior to 1937, the Supreme Court's Commerce Clause jurisprudence made hard distinctions between commerce and such things as manufacturing and labor. This episode takes a look at three cases from the late nineteenth and early twentieth centuries: United States v. E.C. Knight (1895); Champion v. Ames (1903); and Hammer v. Dagenhart (1918). Next, we will explore the Supreme Court's move away from these precedents beginning in the 1937 case of NLRB v. Jones and Laughlin Steel Corp.

One of the powers of Congress, listed in Art. 1, Sec. 8 of the Constitution, is the power to regulate commerce among the several states. Like a lot of big constitutional issues, the terms of debate for understanding the Commerce Clause were set by Chief Justice John Marshall in a decision from the early nineteenth century. In Gibbon v. Ogden (1824), Marshall argued that we should interpret the power to regulate commerce broadly, in light of the purpose of the Constitution to create a national government independent of the states and with powers adequate to achieve the great objects of national power.