Evening star., 1935-07-30
COURT INDICATES
WAY TO NEW DEAL
Constructive Interpretation
of Constitution Is
Pointed Out.
By DAVID LAWRENCE.

Far from handing down a destruc-
tive decision, the Supreme Court OF
the United States pointed the way IN
the famous Schechter case to a con-
sTuctive manner of interpreting the
Constitution and the commerce clause
- This statement may come as a sur
prise to those who have been listening
to the arguments of New Dealers that
everything was lost when the N. r. A.
case was decided and that only a
Constitutional amendment will bring
recovery.
But in any survey OF what can be
done to make New Deal within the
Constitution, the words Of advice given
by a unanimous Supreme Court can
not be overlooked For they prac-
tically indicate the course that might
be followed.
Review Power Maintained.
- Thus. having suggested that the
Federal Trade Commission be en-
powered to determine codes OF fair
competition and that authority be
delegated to the commission, this
correspondent realizes the necessity
of iustifying the belief that Congress
could conStitutionally delegate Its
powers to commission.
While the Supreme Court has again
and again upheld statutes which dele
. gated power. as, for instance, to the
Tariff Commission and the Radio
Commission, it has been careful to
assert that the courts shall retain the
power of review on strictly judicial
questions that arise outside Of the
commissions examination of the facts
in a given case or out Of an attempt
to go beyond a given area defined by
law
Again and again. what the Su-
preme Court has said is that Con-
cress must not pass the buck" by
leaving it to a Federal commission
to decide all questions of law and
fact. The Congress must set up the
limits wherein the commission must
operate and prescribe the standards
of Judgment so that arbitrary action
by a governmental commission will
be impossible under the law.
=" Can't Abdicate Functions.
"The Congress-" said the Supreme
Court in the Schechter case, "is not
permitted to abdicate or to transfer
to others the essential legislative func-
tions with which it is thus vested.
We have repeatedly recognized the
necessity of adapting legislation to
complex conditions involving a host
of details with which the national
legislature cannot deal directly"
Then the court went on to say
significantly, indeed, that the Con-
stitution has never been regarded as
denying to Congress the necessary
resources of flexibility and practically
which will enable it to perform its
function in laying down policies and
establishing standards, while leaving
to selected inStrumentalities the max
ing of subordinate rules within pre-
scribed limits and the determination
of facts to which the policy as de-
clared by the legislature is to apply.
This was but another way Of saying
that Congress must take pains to write
the rules, must set forth the limits,
must specify the penalties, must tell
the citizens in advance what the law
is. so he will not wake up some day
and find he is violating a law that has
never before even been published.
No Bar to Codes.
The Supreme Court did not say
codes of fair competition could not
be written and proclaimed. 1t did say
that merely calling something fair
competition" and writing series Of
codes under that term was not q
power that could be derived from the
fact that unfair competition" had
been described in the past and set
forth in statutes upheld as constitu-
tional. The court registered an objec-
ton, indeed, to mere recitation of
objectives in a preamble of the law
and calling these things Legislative
standard"
A careful reading of the decision
will reveal that the court did not close
the door against law that would set
forth legislative standards and rules
for fair competition and delegate their
administration to a competent tri-
bunal, like the Federal Trade Com
mission, with the limits of the law
clearly expressed, so that the citizen
could have no doubt of what was
meant.
But the court did not approve the
Idea that Congress could delegate to
the President or any of his associates
the right to make codes. Congress
alone could write them and then
authorize the Trade Commission to
carry them out. But, it will be argued,
this means laborious work and con-
siderable time.
But, after a depression, a nation
cannot be rebuilt in q day, and per-
manent relief from evils in an eco
nomic system cannot be eradicated
overnight or by methods that do not
assure simple justice to all con-
cerned.
Many Aids Available.
To write statute of fair competi-
ton, Congress can bring to its aid a
multitude of briefs and plans sub
m1tted by many who have studied this
question from a legal and economic
viewpoint for 80 years. But Congress
cannot expect to be successful in
writing workable statute if it is per-
suaded to take short cut by putting
dictatorial powers into the law for a
bureaucrat to administer. Nor can
there be acceptance by public senti-
ment Of a law that does not allow
for an appeal or review OF a COM
missions decisions or for an orderly
procedure such as should be followed
in the evolution of administration
law.
Also, unless the Chief Executive is
willing to appoint judicially minded
persons to the Federal Trade Com
mission and other commissions to
which Congress delegates power, un-
less politics is eschewed and less
emphasis placed on social theory and
more on true appraisal of the prac-
tical merits of each case, there can
be little hone for a constructive soI,,