Evening star., 1936-03-13
POWER OF FIXING
. PRICES INVOLVED
Coal Case Ruling to Decide
Far.Reaching Controlled
Economy Issue.
BY DAVID LAWRENCE.

laws fixing the prices OF goods OF any
kind moving from State to State?
This is the issue which has arisen
m connection with the constitutions
hlity of the Guffey coal act ana In
some respects the case is broader than
The Schechter case which declared the
N. r. A. invalid.
Indeed, the case now being argued
nv the Department of Justice consti-
tutes in effect a reargument OF the
issues inperfectly raised In the
scheci1ter case, or at least imperfectly
from the viewpoint of the New Dealers
who have had several months In which
to develop their theory as to the
validity of congressional power over
price-f1xing.
The key to the New Deal strategy Is
60 be found in the briefs formally filed
with the court. They reveal an amaz-
ing shift in attack and one that is IN
a sense far more significant than the
approach made by the New Deal
LAWYERS when they argued the
Echechter case.
To develop the new argument, Prol.
Edwin S. Corwin of Princeton Uni
yersity was brought into service. He
had been on a years leave OF absence
from his post and accepted the invita-
tion of an old friend. John Dickinson,
Assistant Attorney General. to collab-
crate in the preparation of briefs.
a First and foremost the New Deal
now comedies something that was not
at all conceded on the floor OF Con-
gress when the Guffey act was passed,
namely, that the act does not stand
within the right of Congress under
the taxing power. This position Is
abandoned though the opponents OF
the law In their brief insist that the
existence of a provision compelling
producers Of coal to join the code or
suffer a prohibitive penalty tax Is
enough to invalidate the law anyhow.
Question of Regulation.
The New Deal, on the other hand.
contends that the penalty is proper II
Congress has the right to regulate
sales or prices in interstate commerce.
In other words, no attempt is made to
rest on the taxing power for the reason
probably that the Supreme Court In
the famous child labor cases said that
the taxing power could not be used as
a subterfuge to regulate interstate
commerce.
The New Deal lawyers now turn the
argument around. They say that
Congress has the right to fix prices in
interstate commerce and as part Of
its authority it can invoke a penalty
tax. If this is upheld it is insisted that
hours and wages can be regulated by
the Congress as an incident OF the
same power to regulate interstate COM
.nnerce.
. Most important then is the New Deal
contention as to why it thinks Con-
sgress possesses the right to regulate
sales or prices in interstate commerce.
Here the Corwin philosophy comes
into play. He has insisted right along
that the commerce power given Con-
.aress was broad enough to regulate
ssctivities Of business that are related
sto the interstate shipment or sale Of
sgoods.
In the Schechter case the New Deal
argued that anything which affected"
interstate commerce was q proper sub
sject for congressional action and 1t
was insisted that the N. r. A. codes
covered those operations of business
which affected" interstate COM
.merce. The Supreme Court said in
sthe Schechter opinion that things
which "affect" interstate commerce
might Of course come under the con-
gressional power, but that the effect
had to be direct and not remote and
that killing and selling chickens after
they arrived at the slaughter house of
the handlers in New York had no
direct effect on interstate commerce,
nor did the wages and hours Of the
employees.
The New Deal has endeavored to
prove that the coal business, however.
mas elements that are direct in their
effect on interstate commerce. The
point is made for example that the
marketing Of coal is an interstate
operation and that no one State can
regulate the sale Of coal without being
affected by what happens in other
coal-producing States.
Milk Within a State.
Thus the Supreme Court has upheld
the right Of the State Of New York as
an emergency measure to Ak the prices
OF milk sold within the State, but 1t
has ruled on the other hand against
the right Of State to fix the price of
milk coming in from a neighboring
State.
The New Deal lawyers in the argu-
inent on the Guffey law have mar
sshaled the representatives of six State
governments to file briefs with the
court stating that their respective
States do not have the power to con-
troll the prices Of coal shipped into or
from their States and that since there
Is no power for the States to do this,
namely, since this right is not reserved
to the States, 1t must necessarily be
within the Federal power.
The constitutional provision with
reference to reserved rights" Of course
Is not confined to State governments
but to the people of the States. The
tenth amendment says that all powers
not delegated to the Federal Govern
ment are reserved to the States ''or to
the people" In many cases here
tofore the Supreme Court has said
that State government does not have
the right to enact price-fxing legisla-
ton, as for instance when Tennessee
law attempting to fix the prices of
gasoline at the filling station was de-
clared to be beyond the power Of the
legislature and an interference with
the rights Of the individual.
Certainly the Guffey case will attract
more and more attention and the
opinion Of the Supreme Court may
take on even more Importance than
the opinion in the Schechter case
because 1t involves broader issues. A
decision is expected sometime In the
latter part of April or the first part Of