Evening star., 1935-01-09
COURT VIEW HELD
GUIDE FOR FUTURE
Congress Delegation of
Code Power Seen Limited
by 8-to-1 Opinion.
BY DAVID LAWRENCE.

By DAVID LAWhENCE.
The Supreme Court of the United
States by its decision has not really
prevented the shipment Of "hot oil"
from State to State-for this can
readily be accomplished by new law
but it has applied the brakes to
those New Dealers who have had
the mistaken notion for many months
that the executive bureaus and COM
missions can write laws.
For a long while the New Dealers
have been nervous about what the
Supreme Court would say about
many of the acts Of the emergency
agencies of government, but they were
hardly prepared for virtually unani-
nous decision of the highest court
in the land. 1t had been supposed
that the court would divide by five to
four, with the conservatives and lib
erals lined up against each other.
Acts on Clear-cut Issue.
But an 8-to-1 decision indicates
clearly that when a clear-cut case OF
usurpation of power comes to the
Supreme Court it will not hesitate to
throw out such an attempt to take
away rights that have not been and
cannot be delegated.
No longer, therefore, Is it a queS-
ton of packing the court by ap-
pointing new judges to take the place
of those who rule against the New
Deal, for it isn't a divided court
which has made the decision in the
first important case involving Fed
eral power-its court in which
conservatives and liberals stood to-
gether.
1t can hardly be said that the oil
decision was unexpected because the
lawyers in the Interior Department
already were working last Summer on
a new bill. separate and distinct from
the national industrial recovery act, to
take care of the "hot-oil" situation.
Executive Discretion Discounted.
But the basis for the supervision of
oil shipments cannot apparently be
executive discretion. Congress can
prohibit interstate shipment OF "hot
oil'' and it seems certain that the
Supreme Court will uphold such a
statute, because hot oil" is really
stolen OIL This product is the oil
brought to the surface in excess Of
the quotas set by the States them
selves, and the reason the States try
to control output is hat oil will flow
from one well to another underground
and the owner will lose his supply
unless he drills at the same time.
Hence a surplus is created because it
is virtually compelled if there is un-
restricted drilling.
1t is of transcendent importance to
the business world that the new
statute shall be based upon the broad
conservation powers Of the Govern
ment and upon the prohibition of
shipment Of stolen goods in interstate
commerce. 1t need not be In any way
related to the broad power to regu-
late production. For If 1t were con-
ceded that Congress had the right to
pass law prohibiting shipments in
interstate commerce of goods legiti-
mately produced, then it would be pos
sible to fix quotas for all manner Of
articles and the Federal Government
would thus obtain complete authority
over business and industry, irreSpec-
tive of whether or not the production
is wholly within State.
implications Most Vital.
1t is, therefore, the implications
of the decision apart from the effect
on the oil industry, which attract
Nationwide attention. For this is
the first New Deal case decided by
the Supreme Court on the question
of Federal power. The Minnesota
moratorium and the New York milk
cases both involved the question of
the power Of State within its bor-
ders.
The latest decision is explicit in
pointing out the weaknesses of the
New Deal in drafting its statutes.
This looseness of phrasing grew out
of the atmosphere of panic and ex-
cltement which occurred in the first
few months of the New Deal.
The court now has said that Con-
gress can delegate, within certain
limits, its power of administrative
rulings to the Executive Department
of the Government, but, in so dele
eating, the legislative body must be
rather specific in telling the execu-
tive how it wants its general policies
or instructions carried out. Certainly
the Executive Bureaus can not issue
regulations that are outside the scope
of the policy or rule laid down by
Congress in the first instance.
All Codes Seen ImperiIed.
Broadly speaking, the whole sys-
tenn of codes Of fair competition under
the NJ r. A. has been imperiled, but
there is nothing to prevent Congress,
now that experience with the codes
has been obtained, from writing more
specifically what it wants the execu-
tive agencies to do. These laws, how
ever. must conform to precedent as
to what is or is not interstate COM
meree. The States will have to deal
out production inside State lines.
so, IN one sense, business can not
derive the idea that the New Deal
has been given setback in its gen.
eral objectives. But business can
take comfort out of the fact that. If
the American economic system is to
be readjusted and changed, it will
have to be by orderly methods and by
processes not only within the spirit
and the intent of the Constitution, but
~lthin the substance, as well.