Evening star., 1935-06-06
POLITICS BLAMED
INN. R. A. CONFLICT.
Writer Holds Free Justice
Department Could Have
Advised Correctly.
BY DAVID LAWRENCE.

OF all the errors of policy or tac-
tics now revealed by the fact that the
national industrial recovery act has
been declared unconstitutional after
two years of operation, none will
stand out more ConspicuouSly than
the failure of the administration to
realize IN advance that it was en-
barked on an unconstitutional course.
Whose responsibility was it? Should
the Supreme Court render advisory
opinions? Should test cases be
brought directly to the highest court
and without the lower court pro-
cedure?
All these questions are being asked
nowadays because they look toward
the prevention of the same mistake
In the future.
Advisory opinions would be useful
II they could be confined to the points
likely to arise but the court could
not be bound by them, as it must rule
only on a specific case in which a
gwen set of facts arises Likewise
the Supreme Court decisions of the
past contained hundreds of state
ments which, If taken to heart by
the administration and by Congress-
would have been sufficiently advisory
IN nature to act as a preventive.
Law Not Ambiguous.
AS for hurrying up test cases. the
whole theory of our judicial system is
not one Of haste, but of mature de-
liberation, and there is much that
can be brought out in a lower court
which has an important bearing on
the principles passed on by the higher
court.
The simple truth is that the law is
not as ambiguous as some of those
who defended the N. R. A have
tried to make others believe A De-
partment of Justice opinion could
have been asked by the President, and
II the Department of Justice we're
freed from the Executive pressure
which, under Republican as well as
Democratic administrations 1t has
experienced IN recent years. there
would have been rendered a clear
opinion on the constitutional prin-
ctples involved
Lawyers Baked.
The administration of the Depart
n1ent of Justice ought TO be Just as
immune from any partisan or political
influence as the administration of the
income tax operation. 1t is an open
secret in Washington that the De-
partment of Justice under Attorney
General Cummings has never SYM
pathized with the brain trust" law
yers who introduced all the novel
ideas of wha affected" interstate
commerce. Indeed, when the De-
partment Of Justice a few months aHo
sought to drop the Houde case. with
its attempt to enforce the majority
rule idea as part Of an attempt to
regulate labor relations by Federal
Statute, the lawyers in the depart
ment baked.
What happened? Promptly a hue
and cry arose that Mr. Cummings
wasn't liberal, that the Department
of Justice was "reactionary" As
consequence, the department did
agree, but against its own better
Judgment, to prosecute the Houde
ton to the department the other day
on instruction from the President to
drop the Houde case and similar liti-
cation.
Stampeded Into Case.
Take the test cases on the N R. A.
codes. The Belcher case was dropped
shortly after Stanley Reed became
solicitor general. He saw at once that
1t had not been argued on the facts
and that it was a weak case because
Of the way it had been developed from
a legal viewpoint. But when he an
nounced the dropping of the Belcher
case. what occurred? From Congress
and from the code authorities. where
fat Jobs had been provided for a new
kind Of bureaucrats the cry went up
h:at the department had sabotaged an
important case.
What was the result? The Depart
ment of Justice was stampeded into
taking the Schechter case. an admit
tedly weak case. but nevertheless suf-
flc1ent for a test And when the
Supreme Court demolished that case
by unanimous opinion, it was apparent
again that had the Department of
Justice long ago been released from
pressure and had it been permitted TO
exercise its own judgment free from
threats by outside groups. the country
would never have experienced the un-
certainty and confusion following the
Supreme Court decision.
Some day the minorities which dom
mate and coerce government will be
overwhelmed by majorities of ndlg-
nant voters End then we shall have
real opinions from the Department
of Justice on the merits of every leg
islative proposal that touches un-
constitutionality.