Adam Cohen suggests in The New York Times that the Supreme Court may be on its way to declaring the New Deal unconstitutional. If you think this is likely, I have a game for you: name the last Supreme Court opinion that ruled in favor of the states or limited federal power in a case that had clear federalism overtones.
If I’m not mistaken, it’s been quite a while. The most recent federalism cases decided by the Court are Sabri v. United States, Tennesee v. Lane, Alaska v. EPA, and Frew v. Hawkins. The federal government’s side won all of these cases; Frew and Sabri were 9-0. If the Supreme Court is on its way to undoing the New Deal, the Justices must relish the element of surprise.
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