Evening star., 1936-01-07

nVOlVlIlS Tie expenditure OI ulOIlcyo |
for non-Federal purposes have been
enacted and carried into effect"
No Way Available to Test
Expenditure Legality.
As the opinion points out, such ex- /
penditures have not been challenged !
because no remedy was open for test |
ing their constitutionality in the |
courts.
We are not here concerned with a |
conditional appropriation of money, |
nor with provision that II certain |
conditions are not complied with the
appropriation shall no longer be avail |
able. By the agricultural adjustment !
act the amount of the tax is appro- |
priated to be expended only in pay
ment under contracts whereby the
parties bind themselves to regulation
by the Federal Government There
is an obvious difference between a
statute stating the conditions upon
which moneys shall be expended and
one effective only upon assumption
of a contractual obligation to submit
to a regulation which otherwise could
not be enforced. Many examples
pointing the distinction might be cited.
We are referred to appropriations in
aid of education, and it is said that
no one has doubted the power Of Con-
gress to stipulate the sort of education
for which money shall be expended.
But an appropriation to an educa-
tional institution which by its terms
is to become available only if the
beneficiary enters into contract to
teach doctsines subversive of the Con-
stitution is clearly bad. An affirm
ance of the authority of Congress so
to condition the expenditure of an
appropriation would tend to nullify
all constitutional limitations upon
legislative power.
But it is said that there is a wide
difference in another respect, between
compulsory regulation of the local
affairs OF States citizens and the
mere making of a contract relating to
their conduct; that, If any State OBJ
! jects, it may declare the contrast void
and thus prevent those under the
States jurisdiction from complying
| with its terms. The argument is
plainly fallacious. The United States
can make the contract only if the
Federal power to tax and to appro-
pirate reaches the subject matter of
the contract. If this does reach
the subject matter, its exertion can
not be displaced by State action. To
say otherwise is to deny the suprem-
acy of the laws of the United States;
to make them subordinate to those of
State. This would reverse the car
dinal principle embodied in the Con-
stitution and substitute one which
declares that Congress may only ef-
fectively legislate as to matters with
in Federal competence when the
States do not dissent.
Congress has no power to enforce
its commands on the farmer to the
ends sought by the agricultural ad-
justment act. 1t must follow that
it may not indirectly accomplish
those ends by taxing and spending
to purchase compliance The Con-
stitution and the entire plan of our
of the power to tax and to spend as
the act undertakes to authorize 1t
does not help to declare that local
conditions throughout the Nation
have created a situation of national
concern; for this is but to say that
whenever there is widespread SINH
larity of local conditions, Congress
may ignore constitutional limitations
upon its own powers and usurp those
reserved to the States. If, in lieu
of compulsory regulation of subjects
within the States reserved jurisdic-
ton, which is prohibited, the Con-
gress could invoke the taxing and
spending power as a means to &C
complish the same end. clause l of
section of article 1 would become
the instrument for total subversion
of the governmental powers reserved
to the individual States.
| All Industry Regulation
Possible With Power.
| If the act before us is proper exer-
| else of the Federal taxing power,
evidently the regulation of all indus
try throughout the United States may
be accomplished by similar exercises
of the same power. 1t would be pos
sible to exact money from one branch
of an industry and pay it to another
branch in every field of activity which
lies within the province of the States
/ The mere threat of such a procedure
might well induce the surrender of
rights and the compliance with Fed
eral regulation as the price OF con-
tinuance in business. A few instances
will illustrate the thought.
Let us suppose Congress should de-
termine that the farmer, the miner
or some other producer of raw ma
! terials is receiving too much for his
products. with consequent depression
of the processing industry and idle
ness of its employees. Though, by
| confession, there is no power vested
in Congress to compel by statute
lowering of prices of the raw material,
the same result might be accom-
plished, if the questioned act be valid,
| by taxing the producer upon his out
put and appropriating the proceeds
to the professors, either with or with
out conditions imposed as the con-
sideration for payment OF the subsidy
We have held in Schechter Poultry
| Corp. VS. United States, 295 U. S. 49o,
that Congress has no power to regu-
late wages and hours of labor in a
local business. If the petitioner Is
right this very end may be accom-
plished by appropriating money to be
paid to employers from the Federal
Treasury under contracts whereby
they agree to comply with certain
standards fixed by Federal law or oy
| contract.
Should Congress ascertain that
sugar reflners are not receiving a fair
profit, and that this is detrimental 10
| the entire industry, and in turn has