The Indianapolis times. [volume] (Indianapolis [Ind.]) 1922-1965, 1935-12-23
JUDICIAL LEGICIDE"

TINE temporary injunction issued by District Fed
eral Judge Otis of Kansas City, declaring the
Wagner Labor Act unconstitutional is more disquat-
ing because of his method than because of it's
content.
The judge chose to take short cut across the law
by using his equity power to enjoin the sovereign
government from carrying out Congress explicit will
This in spite of the fact that the law spells out
legal procedure designed to prevent any employer
from being deprived of his rights The law accords
to the employer three open hearings-a local one,
appeal to the National Labor Board and final ap-
peal to the Circuit Court of Appeals-before cease
and-desis order against unfair labor practices can
be granted. Judge Otis enjoined the board from
even holding the local hearing to determine whether
an unfair labor practice affecting interstate COM
merce, had been committed.
1t is not of serious moment that this judge de-
nounced the labor act a usurpation of states
rights under the commerce clause. The Supreme
Court will have the final say-so on that question.
1t is of moment that he and other judges to degree
never before witnessed using the injunction to
nullify Congress- expressed will in reform legisla-
ton. In the past few weeks avalanche of injunc
lions have been issued not against lawless individuals
or corporations but against the government.
More than 100 njunctions have been laid against
collection of the AAA processing taxes The United
Gas Improvement Co. has used the Federal Court to
stay operation of the utility act. Several Fed
eral judges acting in behalf of big coal companies,
stay collection of the Guffey Coal Act taxes
This attempt to utilize the equity powers of the
lower Federal courts to hold up or nulify acts Of
Congress marks dangerous drift away from sound
and logical administration, and away from the
spirit and letter of the Constitution All these acts
are laws. They became laws when Congress passed
them and the President signed them. They will con-
tinue to be laws until they repealed or the Su-
preme Court declares them unconstitutional.
The current epidemic of injunctons against the
operation of legislation recalls the scolaw era be-
fore repeal, with this difference: Then Federal
judges were locking up men for violating the law,
now some of them align themselves with the scott
law elements of the business world. Their actions
come pretty near being what Prof. Thomas Reed
Powell of Harvard Law School calls judicial leg-
eide" -..f
Assumption of legislative powers by the courts is
certain to bring reaction. Even the right of the
United States Supreme Court to nulify acts of Con-
gress is being challenged assumption rather
than delegation of power under the Constitution
If the lower courts now assume this right through
equity powers to bind the governments hands,
Congress will be forced to limit their injunctive
powers. -
The situation also emphasizes the need of speed
ing up Supreme Court rulings on acts OF Congress
and generally clearing up the relationship between
the judicial and legislative arms of government. 1t
is ntolerable to keep important laws hanging for
months in purgatory of confusion and doubt,
prey to their enemies in and out of court.