Evening star. [volume] (Washington, D.C.) 1854-1972, 1935-09-18
RIGHT TO BAR MAIL
TOF|RMS DISPUTED
Method of Compelling 0be-
dience to New Deal
May Be Tested.
RY DAVID LAWRENCE.

regulate the user OF the mails dS well
as the use of the mails?
This fundamental question, touch
ing several provisions of the Consti-
tuition which guarantee the Individual
against Federal domination, has been
raised in a number of cases growing
out of legislation passed under the
New Deal
Thus in the securities act, in the
Guffey coal law, and in the public
utility law, the Congress undertakes
to prohibit the use Of the mails to
all companies or corporations or ndl-
viduals who do not comply with the
compulsory features of these laws.
If sustained by the Supreme Court,
the power to exclude from the use
of the mails would be as far-reach-
ing as anything that has been sug-
gested under the commerce clause or
the taxing privilege. In brief, Con-
press could regulate any business or
industry because the use of the
mails is nowadays absolutely essen
tial to the carrying on Of enterprises
of all kinds.
Mail flgnL 70 UTOWs
The other aspects Of unconstitution-
atty have received more emphasis
and attention but in the next lew
months the struggle over what conSti-
tutes the limits of congressional
power over the use of the mails will
be intensified.
Exhaustive research covering all the
cases decided by the Supreme Court
of the United States affecting the
right of Congress to regulate the use
of the mails reveals that there has not
been any considerable amount OF ad-
Indication on this constitutional pro-
vision but that most Of the cases were
decided along the same lines as two
leading decisions-one in 1877 and
the other In 1892. In each Of these
the power of Congress to exclude mat
ter from the mails was upheld, but in
all cases the exclusion has been on
the ground that distribution of the
matter itself would be injurious to
public morals. the public health or
involve the getting of money under
false pretenses.
True Test Lacking.
Thus limiting the cases to the &C
tual facts, it cannot be said that the
right of Congress to exclude anything
and everything it sees fit has been
upheld. There are, of course, state
ments by the Supreme Court that
Congress may designate what shall or
shall not be carried in the mails, and
there seems no doubt that Congress
may exercise its discretion as to what
is or is not an evil. The nature of
the matter carried affords the true
test.
The provisions of the securities act
of 1888 and the amendments in 1884
denying the use of the mails in GER
tain instances may possibly be sup
ported by the views that the Supreme
Court has expressed in litigation grow
ing out Of lotteries. But this has al
ways been on the ground that the ex-
clusion pertains to matters involving
schemes to defraud.
While this basis might be put for
ward as a means of preventing fraud
ulent securities from being sold across
State lines, it can hardly be convinc-
ingly used to support the provisions
of the public utility act or the Guf1ey
coal law. The coal business is in
itself legitimate and lawful. The let
tiers mailed by coal companies to
customers to whom they sell their
product are certainly lawful in them
selves. 1t would be incredible that
a Federal bureau would have the right
to open letters from coal companies
or from utility companies to de-
termine which ones are within and
which ones are outside the prohibition
of the use of the mails. And yet that
is what the job of enforcement would
be unless the act means that coal
company or utility company
couldn't use the mails at all unless
II complies with the mandates of a
Federal bureaucracy on how to con-
duct its business.
Court Pledges Protection.
1t would seem that the Supreme
Court itself warned against possible
abuse of the power to regulate the
use of the mails when it declared
in the famous Rapier case:
But it is said if lotteries can thus
be excluded from the mails, Con-
gress may exclude anything on the
pretext that it is hurtful, and in that
way break down a legitimate busi-
ness. This is the old argument
against a power because 1t may be
abused.
This court is a sufficient protection
against an abuse of State police
power. And if Congress shall abuse
its police power over the mails. this
court will in like manner correct that
abuse. 1t will neither suffer a State
or Congress to invade guaranteed
police power"
On general principles, therefore, it
would appear that the power of Con-
greSS over the mails, and its Incl
dental authority necessary to such
power, must be exercised in accord
ance with other provisions of the Fed
eral Constitution, such as those guar
anteeing the citizen protection against
the loss of his property and liberty,
freedom of speech, etc, just as Con-
greSS is limited in the exercise of the
commerce clause, bankruptcy powers
or other powers expressly granted.
The conclusion is unacceptable that
while Congress may regulate the use
of mails and determine what Is or is
not mailable matter it cannot regulate
the user of the mails and tell him how
to run his business, what wages to
pay, what prices at which to sell his
goods and generally control industry
through the prohibition of the use of
the mails.