Evening star., 1935-05-28

| AsOOA ySoeSAeoy 0ekASAS /
Courts power to override con-
gressional action
legislative functions when the Presi-
dent is directed to inquire into such
practices and denounce them when
discovered. For many years like
power has peen committed to the
Federal Trade Commission with the
approval of this court in a long series
of decisions CT. Federal Trade Com
mission VS.. Keppel & Bro, 2Sl U. S.
304. 3l2: Federal Trade Commission
VS. Raladam Co., 283 u. S. 643. 648;
Federal Trade Commission vs.. Gratz,
253 U. S. 421. Delegation in such
circumstances is born of the neceSsi-
ties of the occasion. The industries
of the country are too many and di-
verse to make it possible for Congress,
in respect of matters such as these, to
legislate directly with adequate ap-
probation of varying conditions. Nor
is the substance of the power changed
because the President may act at the
instance of trade or industrial asso-
Citations having special knowledge Of
the facts. Their function Is strictly
advisory; it is the imprimatur of the
President that begets the quality Of
law. Doty VS.. Love. 294 U. S. -. When
the task that is set before one Is that
OF cleaning house. it is prudent as
well as usual to take counsel OF the
dwellers.
Plentitude Of Power
Not Susceptible to Tranfer.
But there is another conception of
codes of fair competition. their sig
nificance and function, which leads
to very different consequences, though
it is one that is struggling now for
recognition and acceptance. BY this
other conception code is not to be
restricted to the elimination of busi-
ness practices that would be charac-
terized by general acceptance as op-
pressive or unfair. 1t is to include
whatever ordinances may be desirable
or helpful for the well-being or pros
perity of the industry affected. In
that view. the function of its adop-
ton is not merely negative, but posi-
tive; the planning of Improvements
as we'll as the extirpation of abuses.
What is fair, as thus conceived, is not
something to be contrasted with what
is unfair or fraudulent or tricky. The
extension becomes as wide as the field
of industrial regulation. If that con-
ception shall prevail, anything that
Congress may do within the limits of
the commerce clause for the better
ment of business may be done by the
President upon the recommendation
of trade association by calling it a
code This is delegation running riot.
No such plentitude of power is sus-
ceptible of transfer. The statute, how
ever. aims at nothing less. as one can
learn both from its terms and from
the administrative practice under it..
Nothing less is aimed at by the code
now submitted to our scrutiny.
The code does not confine itself to
the suppression of methods of COM
petition that would be classified as
unfair, according to accepted business
standards or accepted nOrms of ethics.
1t sets up a comprehensive body Of
rules to promote the welfare of the
industry, if not the welfare of the
Nation. without reference to stand
ards. ethical or commercial, that could
be known or predicted in advance of
its adoption. One of the new rules,
the source of 10 counts in the indict-
ment. is aimed at an established prac-
tice, not unethical or oppressive, the
practice of selective buying. Many
others could be instanced as open to
the same objection if the sections of
the code were to be examined, one by
one The process of dissection will
not be traced in all its details. Enough
at this time to state what it reveals
Even If the statute itself had fixed
the meaning of fair competition by
way of contrast with practices that
are oppressive or unfair, the code out
runs the bounds of the authority con-
ferred What is excessive is not
sporadic or superficial. 1t is deep
seated and pervasive. The licit and
Illicit sections are so combined and
welded as to be incapable of severance
without destructive mutilation.
But there is another objection, far
reaching and incurable, aside from
any defect of unlawful delegation
If this code had been adopted by
Congress itself, and not by the Presi-
dent on the advice of an industrial
association, 1t would even then be void
unless authority to adopt it is in
cluded in the grant of power Ito
regulate commerce with foreign ma
tions and among the several States"
United States Constitution, article I,
section 8. clause 3.
No Authority Found
for Regulation of Wages.
I find no authority in that grant
for the regulation of wages and hours
OF labor in the intrastate transac-
tions that make up the defend
ants business As to this feature
of the case little can be added to
the opinion of the court. There is a
view of causation that would obliter-
ate the distinction between what is
national and what Is local In the
activities Of commerce. Motion at
the outer rim is communicated per-
ceptibly, though minutely, to record
ing instruments at the center. A
society such as ours "is an elastic
medium which transmits all tremors.
through its territory; the only ques-
ton is of their size Per Learned
Hand, j., in the court below. The
law Is not Indifferent to considcra-
tions of degree. Activities local in
their immediacy do not become inter-
state and national because of distant
repercussions. What Is near and
what is distant may at times be un-
certain. CT. Board of Trade VS.. Olsen,
262 U. S. /. There Is no penumbra
of uncertainty obscuring judgment
here. To find immediacy or directness
here Is to find it almost everywhere.
If centripetal forces are to be isolated
to the exclusion of the forces that
oppose and counteract them, there
will be an end to our Federal system.
To take from this code the pro-