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.