Government by Permanent Emergency: The Forgotten History of the New Deal Constitution

Abstract

The New Deal Court of the late 1930s and 1940s rewrote American constitutional law regarding the scope of national power within the states. Historically, legal analysts have exhaustively reviewed the impact and aftermath of this alteration. Left largely unacknowledged, however, is the fact that many of these reforms were originally promoted as temporary "emergency" measures intended to counteract the Great Depression. After the Depression ended, however, the expanded federal powers, invoked under the New Deal emergency decree and upheld by the United States Supreme Court, remained intact. A radically altered form of American government, without [*260] retreat to its former state, resulted. President Franklin Delano Roosevelt grounded the New Deal reforms in his powers as Commander-in-Chief and justified their extra-constitutionality under war powers jurisprudence. In effect, the executive branch sought and was granted the power to wage a war on American soil; a war against the invisible and intangible enemy of economic depression and injustice. This war never officially ended, however, and the expansion of the federal government in the 1930s and 1940s became entrenched by the mid-twentieth century. This Article argues that Court rulings interpreting the post-New Deal federal expansion as a mere extension of the Commerce, Tax, and Spending Clauses of the Constitution of the United States are incomplete, unless they include the emergency factor upon which the New Deal reforms were expressly based. First, this Article examines the history and effect of the national emergency that President Roosevelt and the New Deal Congress of 1933 declared in America and its eventual impact upon American constitutional law. Further, this Article discusses the evolution of the loosely defined and historically hazy Emergency Powers Doctrine, from a perspective that is both doubtful of its constitutionality and critical of its practical implications. Finally, this Article asserts that the post-New Deal expansions of federal power, popularly thought to have been based on liberal interpretations of the Commerce, Tax, and Spending Clauses of the United States Constitution, ultimately derive credence from the federal government's unstated assumption of permanent emergency operations.