The Fair Labor Standards Act Imposed A Ban On Child Labor That Was "Identical" To the Child Labor Provision Declared Unconstitutional In Hammer v. Dagenhart

Congress enacted a facially unconstitutional provision, and the Solicitor General could only ask the Supreme Court to overrule Hammer.

This week, I taught cases on enumerated powers from the Progressive Era and during the New Deal. In Hammer v. Dagenhart (1918), the Supreme Court declared unconstitutional a federal law that banned the transportation of good made by child labor. The Court found that this law was in fact an attempt to regulate local labor conditions, and the focus on shipping the goods was something of a pretext.

More than two decades later, the Supreme Court overruled Hammer in United States v. Darby (1941). This precedent upheld the constitutionality of the Fair Labor Standards Act (FLSA). Darby was largely an extension of NLRB v. Jones & Laughlin Steel (1935). These two decisions replaced the "direct effects" test with the "substantial effects" test. Under this regime, Congress could regulate any local activity that had a substantial effect on interstate commerce. The Court would also review such regulations with something akin to rational basis scrutiny, and require only a reasonable fit between the means Congress has taken, and the ends Congress is seeking to accomplish.

While teaching Darby, I wondered how Solicitor General Francis Biddle distinguished Hammer. So I pulled the government's brief. To Biddle's credit, he acknowledged that the FLSA contained a child labor provision that was "identical" to the law declared unconstitutional in Hammer:

. . . we recognize that the statute declared unconstitutional in Hammer v. Dagenhart is identical with the child-labor provisions in the present Act. And the prohibition against transporting goods produced by adults working under substandard labor conditions which is involved in this case cannot be distinguished in theory from the ban upon shipping goods produced by children.

The SG argued that subsequent precedent was "inconsistent" with Hammer, including Mulford v. Smith (1939). But the FLSA was enacted in 1938, the year before Mulford.

Of course, Biddle asked the Court to overrule Hammer, which it ultimately did:

It is submitted that the Court has abandoned the principles which controlled the decision in Hammer v. Dagenhart, and that the case should be expressly overruled.

But Congress and the President cannot anticipate the overruling of a Supreme Court precedent. Or at least they are not supposed to.

There you have it. Hammer declared a federal statute unconstitutional. Two decades later, Congress re-enacted an "identical" statute, and the President signed it into law, with no contrary precedent on the books.

I find it very difficult to get worked up over the current events of the day. If the President determines that a Supreme Court precedent is wrong (Humphrey's Executor for example), he can choose to take actions inconsistent with it, and let the Courts decide whether to maintain that precedent. Presidents from Jefferson to Lincoln to Roosevelt understood departmentalism. The ABA had a conniption when President George W. Bush issued a signing statement. Trump is making departmentalism great again.