Amity Shlaes, who chronicled the history of Franklin Roosevelt’s New Deal in The Forgotten Man, explains for National Review Online readers why the political fate of that famous economic program could have implications for the future of President Obama’s Affordable Care Act.
The National Industrial Recovery Act, like the Affordable Care Act, aimed to do nothing less than change an entire sector of the economy — in that case, the industrial and business sector. After passage in 1933, NIRA created a bureaucracy labeled, in its turn, the National Recovery Administration, or NRA. NRA was hard to contradict: Its leader was a general; its emblem, the bald eagle. “Almighty God have mercy on anyone who attempts to trifle with that bird,” General Hugh Johnson told the public. The courts seemed to agree: Nine in ten NRA cases at first were decided in favor of the government.
NRA administrators led companies in the writing of codes for their respective trades. Like the ACA’s rules, these codes were offered in agonizing and counterintuitive detail. In those days NRA codes mandated minimum wages, minimum prices, new health and safety regulations, and business practices that efficiency experts recommended whether or not firms themselves saw their logic.
Just as the ACA stumbled over its own website this past winter, the NRA stumbled over it own forms and names, which were long enough to provoke ridicule. The name of the code that governed a family of Brooklyn chicken butchers called Schechter, for example, was “The Code of Fair Competition for the Live Poultry Industry for the Metropolitan Area In and About New York.” Nonetheless, as with the Affordable Care Act today, a general wait-and-see attitude prevailed. In 1933 and 1934 conservatives, mostly jurists, might protest that the NRA was too intrusive. But the rebuttal would come: “Intrude upon what? The Depression?” At a time when two in ten were unemployed, the country thought it had nothing to lose.
One of the many firms the NRA investigated was ALA Schechter Poultry, a Brooklyn butcher shop where authorities found numerous violations of the poultry code. After the Schechters were convicted in lower courts, the authorities grew increasingly confident that Schechter would be the case in which the Supreme Court would confirm the constitutionality of their law and the New Deal. Then as now, a kind of assumption, or at least a pretense, was at work. People pretended that the fact that the Schechters were Jewish and that the butcher shop they ran was kosher were ancillary details, a kind of coincidence, or even an annoyance.
But the fact that these particular butchers observed kashruth, the Jewish body of laws involving food, was not a coincidence of this case. It was causal. …
… What was evident was that two large bodies of law were clashing. On the one hand was the elaborate and new NRA poultry code. On the other hand there was the code of the Jewish dietary law, based on the Bible itself. In a contest between NIRA (48 stat. 195) and Deuteronomy (14:21), perhaps Deuteronomy had more authority. The government had its health inspectors, but who were they to go up against Maimonides himself, who had proclaimed that Jews were forbidden to serve “unwholesome” food?
The U.S. Supreme Court ended up ruling 9-0 against the federal government.
The best explanation for the shift in opinion is that such conflicts give the public a chance to consider what it is the government is intruding into or impinging on — not just a vacuum, but the private sphere, the personal sphere, the business sphere, and, yes, the sphere of faith. The spectacle of that intrusion is not easily forgotten once perceived. The chicken of daily business life and ritual can, from time to time, vanquish the eagle.