Evening star., 1935-05-28
AMENDMENT HELD
NEW DEALS NEED
Government by Subterfuge
Seen Killed by High
Court Decision.
BY DAVID LAWRENCE.
by subterfuge Is dead,

Thus might all three OF the oecl-
sions rendered unanimously by the
Supreme Court Of the United States
be epitomized.
If the New Deal wishes to proceed
with its ideas of centralized govern
ment and regulation Of business by
codes. it must obtain sanction through
an amendment to the Constitution OF
the United States, approved by two
thirds of both Houses of Congress and
approved by the people of at least
three -fourths of the States OF the
Union.
What the Supreme Court said In
effect was this:
1. The President cannot make the
laws Of the land
2. Industrial and trade groups can
not make the laws.
3. Bureau chiefs and executive
offcials cannot make the laws.
4. Congress alone can make the
laws, and only in conformity with
the Federal power as written in the
Constitution.
Federal Power Defined.
Having set forth these principles,
the Supreme Court proceeded to define
once more what is and what Is not
Federal power. The court said tnen:
/. Congress cannot regulate busl-
nesses that are not plainly engaged IN
Interstate commerce.
2 The fact that a business opera
ton affects" interstate commerce,
even though it is a transaction inside
a state. does not mean that the FED
eral power can be invoked against H.
z The difference between interstate
and intrastate commerce Is a question
of fact. not theory. The relationship
cannot be remote, but must be proved
to be a real injury to interstate
commerce.
4 Regulation of wages and hours
in a business not engaged IN inter-
state commerce does not affect inter-
state commerce. and there Is no red
eral power to regulate wage levels any
more than there is Federal power to
regulate any other item entering lnto
cost, like production, distr1ouuon'
advertising or the like.
Can't Overestimate Consequences.
The consequences Of these pro-
,nouncements. as contained In the
opinion rendered by Chief Justice
Hughes. cannot be overestimated.
Briefly. here are the immediate
results:
|. The N. r. A. and all the codes
are declared unconstitutional and are
hence invalid from about pm on
Monday afternoon, May 27.
2 The Federal Alcohol Administra-
ton. which controls the liquor traf1lc,
has lost its authority under the N. Il.
A. and must get new legislation, which
II certainly can quickly obtain under
the tweuty-first amendment to the
Constitution, which empowers Con-
rress to enact laws governing snip
.inents of liquor into states wnlch
prohibit it and in foreign commerce.
The Federal power is complete. The
right to inquire into consignments as
to origin and destination will give the
r. A. C. A. q new lease on life.
3. The agricultural adjustment act.
IN 30 far as it relates to licenses, Is
plainly invalid, though it may be
necessary to carry test cases to the
Supreme Court to determine this
finally. Meanwhile, the A. A. A..
amendments may endeavor to meet
court objections, though it Is DIM
cult to see how it can be done ef1ec-
lively. The answer here may be to
scrap the A. A. A. from the license
point of view and adopt the export
bounty plan, which is already in the
pending bill and which seeks to handle
surpluses by paying higher domestic
price than is paid in the export mar
ket. Many of those engaged in the
food business approve the plan.
Wagner Bill Invalid.
4. The Wagner labor BILL as passed
by the Senate, is obviously invalid
The common law protects the right
Of collective bargaining. but the Fed
eral power cannot extend to compul-
sion or coercion over employers, as
has been attempted by the National
Labor Relations Board in the Houde
case and as is set forth in the pro-
posed Wagner bill. Also, it would
seem that the cases instituted in the
rubber industry now would end in
the determination that the Labor
Board has no power over rubber manu-
featuring.
5. Processing taxes and taxes on
pay rolls in the proposed social secu-
rity legislation may or may not have
been impaired by the latest decisions.
but they were never based on the
commerce clause of the Constitution,
anyway There was a hint in the
Chief Justices decision, however, that
the court might have something to
say about due process, namely, the
taking Of property without compen-
sation, as might be the result if a
business were forced to pay a pay roll
tax that it couldn't afford. But these
questions are left to the future, Ger
tainly until another year of litigation
has passed.
The fact that the Court acted
unanimously, that it swept aside un-
equiyocally all the trick phrases and
devices which, for nearly two years,
have come from the brain trust"
lawyers and have been acquiesced in
by Congress, because of fear that, to
oppose them, might incur presidential
disfavor, makes all the more momen-
tous the historic decision of the
highest tribunal in the land.
Public attention, of course, was
focused on the N. r. A. case, but no
less important was the verdict to the
effect that President Roosevelt went
beyond his authority in removing Will
liam E. Humphreys from the Federal
Trade Commission when the law
plainly stated the only grounds on
which removal was justified.
Mr.. Roosevelt was poorly advised
when he wrote Mr. Humphreys that
he had served satisfactorily in every
respect, but that, in effect, his policies
were not liked by the Executive.
The Courts decision now makes Sc
cure the tenure of every member OF
every quasi judicial commission OF
board who has been appointed for q
fixed term and who Is not guilty Of
neglect Of duty or any Of the specific
causes set forth by Congress.