Evening star. [volume] (Washington, D.C.) 1854-1972, 1935-07-09
GUFFEY BILL OPENS.
ERA OF PROBLEMS.
If ConStitutionaIity Is Up
held, Business Must Sur.
render to Politics.
BY DAVID LAWRENCE.

says President Roosevelt, could be OBJ
tanned on the constitutionality of the
Guffey coal bill-but the Congress of
the United States would appreciate
just one.
Under the Constitution. the PreSi-
dent may require from the Attorney
General a written opinion on any legal
question, and there is ground for the
belief that the Department of Justice
has furnished an opinion to the White
House declaring that, based upon de-
cisions of the Supreme Court of the
United States, the proposed measure
violates the Constitution.
Will Congress have the benefit of
that opinion or will it be pigeon
holed?
President Roosevelt has startled
members Of Congress with this bold
assertion:
IT hope your committee blouse
Ways and Means Comlaittee) will not
permit doubts as to conStitutionality,
however reasonable, to block this leg
tSlation."
ReyerSeS Theory.
Heretofore, Congress has been led
to believe that all doubts on proposed
legislation should be resolved in favor
of the Constitution and not in favor
of some particular group Of citizens
who would be benefited by the law.
Mr.. Roosevelt would reverse that his
toric position. His theory is that
neither the President nor the Con-
gress need give weigh. to constitu-
tional principles if the executive and
legislative branches happen to favor
a particular piece of legislation. He
might have said, TO be sure, that
neither the President nor Congress
need run the risk Of hostility from
minority groups. but that all such re-
sentiment should be piled up against
the Supreme Court instead.
The consequences of Mr.. Roose-
velt's philosophy in this regard may
be far-reaching. 1t may mean a
galaxy of damage suits against all
Government officials who seek to en-
force unconstitutional laws. Here Is
what Andrew Mclaughlin, noted pro-
fessor of history in the University of
Chicago and author of an important
work called Constitutional History of
the United States" says on this very
point:
"A question, possibly answered
with difficulty. would. or might be.
whether the President or member
of Congress can constitutionally and
properly vote for measure when a
substantially identical bill has been
Judicially proclaimed unconstitution-
al But there would seem in prin-
ciple to be no doubt of such a right
in the legislative body, which in
cludes the President.
Binds No One.
1.-THE propriety and wisdom of such
action is a different matter and must
be decided by circumstances. Obvi-
ously a studied determination by the
legislators to pass measures which the
courts will not recognize as law may
be nothing more than a proof of OBJ
Stinate stupidity; and on the whole,
the important fact is that decisions
by the Supreme Court have come to
be considered, as practical fact, de-
terminative Of what the Constitution
is.
But with all it must be remem-
bered that no one is bound by an
unconstitutional act. Such an act is
not law. In strictest theory, it binds
no official and no person whatever.
And if no one objected to a law, it
would be difficult or impossible for a
court to pass upon its validity. An
officer carrying out an unconstitution-
al act, before as well as after a
judicial declaration Of unconstitution-
atty, may be personally liable for in
vasion OF private liberty or property.
May Disobey.
ANY private person has the right
and it may be his duty to refuse to
obey an unconstitutional act. But
if he is held by the court to be wrong
in concluding that an act is uncon-
stitutional and therefore to be dis
regarded, he has to take the con-
sequences. This same principle may
be applicable to the President, but in
his case the tribunal qualified to con-
denim him would probably be the
Senate sitting as court of impeach-
ment."
Has an identical bill to the Guffey
coal bill ever been passed on by the
Supreme Court? There are two fea-
lures in the Guffey bill-one relates
to the use Of the taxing power to
compel businesses to accept a code,
and the other is an outright prohi-
bition of the facilities of interstate
commerce to any coal company that
doesn't accept the code.
The Supreme Court disposed of the
misuse Of the taxing power in the
so-called second child labor case. AS
for the right of Congress to substi-
tute the phrase ito prohibit commerce
among the States" for the phrase in
the Constitution "to regulate COM
merce among States" the Supreme
Court in unanimous opinion said
that one who engages in interstate
commerce does not thereby submit all
his relations to the regulatory power
of Congress.
The decision is especially important
now that the American Federation of
Labor is recommending to the Presi-
dent that legislation be passed requir-
ing all businesses engaging in inter-
state commerce to be incorporated or
licensed by the Federal Government,
an action which would be plainly un-
constitutional.
Power Plainly Limited.
Since the Supreme Court has said
that mining is wholly local matter
1t is difficult to see how the courts
could sustain the Guffey bill, which
would prohibit the use of the mails
or other interstate facilities to all who
engage in the business of buying and
selling the coal after it is mined. The
power to regulate is not the power to
prohibit or to set up all businesses in
commerce as public utilities
subject to Federal control.
If the Guffey bill were held con-