Evening star. [volume] (Washington, D.C.) 1854-1972, 1935-08-30
BAR GIVEN BLAME
form. R. A.FAULTS
Claims of Democratic Com.
mittee Held Apparently
Anticipatory Defense.
BY DAVID LAWRENCE.

of the lawyers of America. Its pur-
pose apparently is to discredit the
many members Of the bar who have
ventured to question the conStitu-
tionality Of the New Deal laws.
\ Although President Roosevelt, on
two or three occasions lately in his
conferences with the press, has
brushed aside queries about constitu-
tionality by remarking that it all
depends on what lawyer you hire, )"
the formal assault on the legal pro-
fession did not materialize until this
week. 1t occurs in the distribution
by the Democratic National Commit
tee of a statement furnished to all
newspapers of the country. After
feciting that there are often contra
dictory opinions on legal matters in
the business world, the Democratic
National Committees announcement
says:
"All of which appears to mean
that a competent lawyer can give
you the opinion you pay for"
: This kind of comment is bound
10 be resented by the vast number
OF high-minded lawyers of the coun-
try who again and again refuse to
take a case they believe is not we'll
founded or to render legal opinion
on anything but the merits as estab-
liShed by presidents.
Defense by Anticipation.
Tt may be, of course, that the
argument being made by the Demo-
cratic national headquarters Is a
Oefense by means of anticipa ton, be-
cause unquestionably many Of the
Government lawyers will some day
be revealed as having written opin-
ions that they have been paid to
write through political preferment.
Some of them, it is reported, have
been told frankly at times that what
the first draft of their briefs con-
tains may be the law but it is mo-
what the President wants"
The practice of writing politica
opinions is not confined to Demo
cratic administrations. Again anc
again an Attorney General or his as.
.sistants have written opinions tt
conform to the political or legisla-
tive detectives of a President. II
may be that the attack on private
lawyers Is predicated on the notion
that the relations between lawyer and
client in private business are not gov
erned by any better standard of eth.
les than the relations between somt
lawyers inside the Government anc
their client-the superior officer with
the political power of removal.
But If competent and disinterestec
opinions can no longer be obtained
from lawyers hired for fee by COM
.panies affected by presumably uncon-
stitutional legislation, where may the
puzzled laymen go for guidance?
Guffey Law Example.
Let us take the Guffey law. for in
stance, which attempts to use the
taxing power as a means Of regulat-
ing the coal business, or the Bank
head cotton control act, or the Kerr
Smith tobacco control law, all three
of which rest on the theory that, un-
less the producer conforms to Fed
eral regulation, he must pay large
and prohibitive penalty.
Well, 1t might be assumed that
Prof. Thomas Reed Powell, who lee
lures on constitutional law at the
Harvard Law School and happens to
be an associate of Prof Felix Frank
furter, would be immune from char
acterization as a lawyer who can give
you the opinion you pay for" Prof.
Powell has shown by his writings In
the last two years that he has been
rather keenly favorable to the New
Deal. Hence it is important tc
examine this excerpt from Prof
: Powells article in the August issue
of Fortune Writing on the power to
tax, he said:
+ After the first child labor case,
Congress attempted to discourage the
employment of children by an addi-
8 tional income tax on employers Of
children. BY an S-to-1 vote, this
= was declared unconstitutional in the
child labor tax case. On the same
day a unanimous decision condemned
$ o Federal tax of 90 cents bushel
: on all sales Of grain for future de-
= livery, with certain exceptions, includ-
ing those made by or through a men,
Der of board of trade designated by
= the Secretary of Agriculture as q
contract market.
"a Tax Imposed as Penalty.
without going into details, the
major reason of these decisions was
that the so-called tax showed on its
: face that it was imposed as penalty
to discourage undesired conduct. The
layman's test would be whether the
provision of the statute makes it clear
that Congress is hoping that no tax
will be paid but that people will SO
behave as not to be taxable. The
court does not put it in this fashion,
because it desires to avoid the issue of
congressional motive or intent and to
& look for something more objective
The line is not sharp one, but the
child labor tax and the grain futures
: tax were easily on the non-fiscal side
= = without such a distinction as the
distinction between taxes for revenue
I and taxes for regulation there clearly
would be little or nothing left of the
3 Federal system. Congress could regu-
klate all conduct by imposing oppressive
s6r suppresSive taxes thereon. The
situation is quite different when Con-
gress in the Federal income tax al
/, lows State taxes to be deducted from
!. the income returned or in the Federal
estate tax allows State inheritance
taxes to be deducted from the Federal
tax that would otherwise be assessed
Here are real reasons of fiscal fair
ness for the deductions.
Various plans for the use of the
national taxing power as an nipple
ment of so-called social security leg
islation raise some nice questions as
: to whether the tax is a tax or regu-
lation inforced by a penalty.
"a Tax No Regulation.
mo such nicely would be present
: II Congress sought to use the national
taxing power to accomplish any such
results as those sought by the codes