What’s New in the Legal World? A Growing Campaign to Undo the New Deal By ADAM COHEN , NYTimes

[S]tates’ rights conservatives are making progress in their drive to restore the narrow view of federal power that predated the New Deal – and render Congress too weak to protect Americans on many fronts.

We take for granted today the idea that Congress can adopt a national minimum wage or require safety standards in factories. That’s because the Supreme Court, in modern times, has always held that it can.

But the court once had a far more limited view of Congress’s power. In the early 1900’s, justices routinely struck down laws protecting workers and discouraging child labor. The court reversed itself starting in 1937, in cases that led to Wickard, and began upholding these same laws.

States’ rights conservatives have always been nostalgic for the pre-1937 doctrines, which they have lately taken to calling the Constitution-in-Exile. …

In pre-1937 America, workers were exploited, factories were free to pollute, and old people were generally poor when they retired. This is not an agenda the public would be likely to sign onto today if it were debated in an election. But conservatives, who like to complain about activist liberal judges, could achieve their anti-New Deal agenda through judicial activism on the right. Judges could use the so-called Constitution-in-Exile to declare laws on workplace safety, environmental protection and civil rights unconstitutional. …

The court will not return to the pre-1937 Constitution in a single case, but it seems likely to keep whittling away Congressional power and federally protected rights. If it does, what President Franklin Roosevelt declared in 1936 – after two key New Deal programs were struck down – will again be true: “It was not the wage earners who cheered when these laws were declared invalid.”