We hear so much about the
potential for nationalization of Worker’s Compensation. I have often been asked
if this is possible. I think that it is possible, and we can only wonder if it
is practical or probable.
Through the early part of the
20th century the Interstate Commerce Clause was not a tool that could be
effectively used by the federal government to intervene into actions that
occurred within one state. Cases like Mayor
of New York v. Miln, 36 U.S. 102 (1837); Hammer
v. Dagenhart, 247 U.S. 251 (1918); and Schecter
Poultry v. United States, 295 U.S. 495 (1935) demonstrated a federal
restraint that spanned decades in the application of this power. To be clear,
these cases represented instances in which the federal government tried to
meddle, but the courts overruled it.
This sentiment changed with the
new deal. Some critics have claimed that it changed only because personalities
on the court changed. There could be truth in that. In the years leading up to World
War II, the perspective on the Interstate Commerce Clause shifted and various
precedents like those cited above were simply ignored, others were explained
away.
The beginning of the incredible
expansion of the reach of the Commerce Clause started with a simple case. In
the late 1930s and early 1940s, the U.S. government sought to control wheat
prices, and to do so the federal government restricted production. A farmer
named Filburn refused to comply with production quotas. When he was prosecuted/penalized
for that, he asserted that his wheat had nothing to do with interstate
commerce. It was grown on his farm and used on his farm for feed, and never
entered interstate commerce. He argued that he was thus not subject to the
federal production quotas.
The U.S. Supreme Court concluded
that the quotas were a legitimate action of the federal government, under the
Interstate Commerce Clause. The Court held that Mr. Filburn could be regulated,
despite the lack of a real interstate component to his activity. The case is Wickard v. Filburn, 317 U.S.
111 (1942).
The Wickard Court’s
reasoning was two-fold. First, in that Filburn was growing more than his quota
of wheat, he was correspondingly not purchasing wheat from the market to feed
his farm animals; wheat that presumably, potentially, possibly, might have traveled to his farm through
interstate commerce if he had been purchasing it. Second, although his
resulting lack of consumption might seem inconsequential, the Court concluded
that if all (or many) farmers acted similarly, the cumulative effect would be
detrimental to farmers throughout the wheat market, that is
"interstate." The argument as to whether government has any interest
in the price of wheat is for another day.
Thus, following this precedent
interpreting the Interstate Commerce Clause, the U.S. government might validly
preclude Americans from growing strawberries in their garden or roses in
their window boxes. If the intent of the government is to support rose or
strawberry prices, and it concludes that people growing their own instead of
purchasing from florists or grocers is interfering with that, the government
following Wickard might
validly restrict or prohibit you growing these items yourself. This very broad
interpretation of the Commerce Clause has been the law for almost 75
years.
Though this analysis was applied
during that time, some conclude that the next expansion of federal authority
came in National Federation of
Independent Business v. Sebelius, 567 U.S. -----, 132 S.Ct 2566 (2012). Not
without dissent, the U.S. Supreme Court concluded that the analysis in Wickard,
and the Interstate Commerce Clause, justified the federal government compelling
Americans to consume a product, health insurance, despite the fact that they
might not wish to consume.
Under the Sebelius analysis, not only could the U.S.
government prevent you from growing strawberries in your garden, the government
could compel you to purchase your personal quota of strawberries. Despite the
fact that you might not desire any strawberries, might not like them, might be
allergic to them, your duty would nonetheless be to purchase some quantity each
week in order to maintain demand and thus prices. The analysis is not whether
Americans have the freedom to chose what they wish to purchase or grow, the
analysis is what the government decides is appropriate, what the government
decides you must consume.
If the question had been raised
in 1918 or 1935, many conclude that the scholarly answer would have been the
federal government cannot take over workers' compensation, a state law,
statutory, mutual abrogation of rights regarding accidents and injuries
occurring at work. But with the Court's analysis of the commerce clause
in Wickard and Sebelius it seems likely that the question
would not yield that answer today. Over the last 75 years, the reach and impact
of the Commerce Clause has come to know few, if any, bounds.
Can the federal government
regulate and legislate the compensation and treatment for injuries at work? I
believe that the answer to this, if precedent is followed, is now unequivocally
yes.
Some might say that history has
taught us that precedent is not always followed. They might point to the volume
of cases before Wickard, in which the Commerce Clause was not so
broadly interpreted. They would argue that those precedents were not followed
by the Wickard Court. That is an understandable and
logical argument. Some might question why the Court could not take a different
view today, and give Wickard and Sebelius as little respect. These seem
potentially valid questions and arguments.
We might concede for the sake of
argument that such an outcome is possible. The real question, however, is
whether such an outcome is probable or realistic. These are theoretical legal
questions, about the constitution, the Court, and the law. These give law
professors something about which to argue and pontificate.
But perhaps that is not the real
question. The real question, knowing that the federal government likely could legislate or regulate workers'
compensation, is whether the federal government would. There are those who say
"never" and there are those who doubt. But there are also those who
believe that such an action is not only likely, but to be desired. Few ever
suggested before Sebelius that Americans could be forced by
their government to purchase products against their free will. Many thought
this degree of government intrusion into American lives could "never"
happen. But, as Lani Hall sang in the theme song of the Sean Connery movie of
the same name, "Never Say Never Again."
Can the federal government take
over legislation and regulation of work injury compensation and care?
Absolutely. Will it? Time will tell.
