Evening star., 1935-05-28

there set forth point toward . single
goal-the rehabilitation OF industry
and the industrial recovery which un-
questionably was the major policy Of
Congress in adopting the national in
dustrial recovery act" And that this
Is the controlling purpose Of the code
now before us appears both from It's
repeated declarations TO that effect
and from the scope of its require
mentS. 1t will be observed that its
provisions as to the hours and wages
OF employees and its general labor
provisions" were placed in separate
articles, and these were not included
in the article on trade practice pro-
visions" declaring what should be
deemed to constitute unfair methods
OF competition" The Secretary OF
Agriculture thus stated the objectives
of the live poultry code in his report
to the President. which was recited in
the executive order of approval:
That said code will tend to ef-
fectuate the declared policy Of title I
of the national industrial recovery
act as set forth In section l of said
act in that the terms and provisions
of such code tend to: (a) Remove OBJ
Structions to the free f1ow of interstate
and foreign commerce which tend to
diminish the amount thereof: tb) to
provide for the general welfare by
promoting the organization of industry
for the purpose of cooperative action
among trade groups: (c) to eliminate
unfair competitive practices; I'D to
promote the fullest possible utiliza-
tion Of the present productive capacity
OF industries; te) to avoid undue re-
striction of production except as may
be temporarily required; O. to in
crease the consumption Of industrial
and agricultural products by increas-
ing purchasing power. and (g) other
wise to rehabilitate industry and to
conserve natural resources"
Such Delegation Of
Power Unknown to Law.
The Government urges that the
codes will consist OF rules Of compe-
tition deemed fair for each industry
by representative members Of that in
dustry-by the persons most vitality
concerned and most familiar with its
problems" Instances are cited in
which Congress has availed itself of
such assistance; as e. g., in the exer-
else Of its authority over the public
domain. with respect to the recogni-
ton of local customs or rules of miners
as to mining claims, or. in matters of
a more or less technical nature. as in
ha ln rd Hf
drawbars. But would it be seriously
contended that Congress could dele
gate its legislative authority to trade
or industrial associations or groups
so as to empower them to enact the
laws they deem to be wise and benef-
icent for the rehabilitation and ey-
pansion of their trade or industries?
Could trade or industrial associations
or groups be constituted legislative
bodies for that purpose because such
associations or groups are familiar
with the problems Of their enterprises?
And. could an effort of that sort be
made valid by such a preface Of gen.
eralities as to permissible aims as We
find in section l of title l? The
answer is obvious. Such q delegation
of legislative power is unknown to
our law and is utterly inconsistent
with the constitutional prerogatives
and duties Of Congress.
The question, then. turns upon the
authority which section 3 Of the re-
covery act vests in the President to
approve or prescribe. II the codes
have standing as penal statutes, this
must be due to the effect Of the ex-
ecutive action. But Congress cannot
delegate legislative power to the Presi-
dent to exercise an unfettered dis
cretion to make whatever laws he
thinks may be needed or advisable for
the rehabilitation and expansion Of
trade or industry. See Panama Refin-
ing Co. VS.. Ryan, supra, and cases
there reviewed.
Accordingly We turn to the recovery
act to ascertain what limits have been
set to the exercise of the Presidents
discretion. First. the President, as
condition of approval, is required to
find that the trade or industrial asso-
Citations or groups which propose a
code, impose no inequitable restric-
tions on admission to membership" and
are truly representative" That con-
dition, however, relates only to the
status of the initiators of the new
laws and not to the permissible scope
of such laws. Second, the President
is required to find that the code is
not designed to promote monopolies
or to eliminate or OppreSs small enter
prises and will not operate to discrimi-
nate against them" And, to this is
added a proviso that the code shall
practices" But these restrictions leave
virtually untouched the field of pol
Icy envisaged by section l. and. in
that wide field of legislative posSibili-
ties. the proponents of code. re-
framing from monopolistic designs,
may roam at will and the President
may approve or disapprove their pro-
posals as he may see f1t. That is the
precise effect of the further finding
that the President is to make-that
the code will tend to effectuate the
policy of this title" While this Is
called a finding, 1t Is really but state
ment of an opinion as to the general
effect upon the promotion Of trade or
industry of q scheme OF laws. These
are the only findings which Congress
has made essential in order to put
into operation a legislative code hav-
ing the aims described in the "Decla-
ration Of Policy"
President May Accept,
Modify or Reject Terms.
Nor is the breadth of the Presidents
discretion left to the necessary i'm
plications of this limited requirement.
as to his findings. As already noted.
the President in approving code may
impose his own conditions. adding to
or taking from what is proposed, as
"in his discretion" he thinks neces-
sary ito effectuate the policy" de-
clared BY the act. OF course he has
no lsss lberty when he prsseribss .