Evening star., 1938-04-13

so DOING, ne plainly casts doubt unOn
particular activities of all the other
independent commissions, including
the Federal Trade Commission. the
Federal Communications Commission
and other independent agencies His
purpose evidently is eventually to at
tempt to persuade CONGRESS to enact
new legislation affecting all these COM
missions so as to square with his con-
ception of what is constitutional
Perhaps the President thinks that.
some day. a Supreme Court of the
United States on which a majority
Of his appointees sit as judges will
reverse previous decisions of the court
and in effect put thee commissions
largely under the control of the Chief
Executive. Certain paragraphs of the
Presidents message on the railroad
problem. therefore, deserve study in
the light of what has Just happened
with respect to the reorganization bill.
He said
"As the years went by, the Congress
from time to time has extended the
authority of the Interstate Commerce
Commission. vesting in it other quasi
legislative and quasi judicial powers,
and giving to it also a number Of
purely executive functions. While the
latter powers are, in all probability,
unconstitutional in that they create
executive authority IN fourth branch
of the Government instead Of in the
President, I DO not at this tiue raise
that issue"
Part of Congress.
This is a very revealing statement
because 1t disCloses tne trend OF Mr.
Foosevelt's thinking on the subject Of
the independent commissions He
chooses to attack them as a fourth
branch of the Government and as
therefore unconstitutional But Ny.
Roosevelt will find. on looking up the
cases decided by the United States
Supreme Court, that these commits
slons are really a part OF the third
branch of the Government. namely.
the Congress, Chief Justice Hughes,
for instance. speaking on behalf Of
unanimous Supreme Court in the
SCheChter case. in 1885. said:
I'VE have repeatedly recognized the |
necessity of adapting legislation to
complex conditions involving a host |
of details with which the National
Legislature cannot deal directly. We
pointed out in the Panama Co. case
that the Constitution has never been
regarded as denying the Congress the
necessary resources of feXibility and
practicality which still enable it to
perform its function in laying down
policies and establishing standards,
while leaving to selected instrument
talities the making OF subordinate
rules within prescribed limits and the
determination Of facts to which the
policy, as declared by the Legislature,
is to apply"
Often Upheld View.
Again and again the Supreme Court |
has upheld the power OF Congress to
select its own Instrumentalities for
the making of certain policies and
rates within prescribed limits and in
accordance with prescribed standards.
Thus, the Supreme Court has ruled
that the Tariff Commission may make
flexible tariff rates within certain
limits. Likewise, it has upheld the
power of the Ma atlonal Labor Relations
Board in issuing certain orders gov
erning labor relations.
If Mr., Roosevelt's conception of a
commission or board is correct. then
nearly every one of the present boards
and commissions will have to be re-
vamped by new laws. Other Presi-
dents have called attention to the
existence of ouasi-legislative and quasi
judicial powers in the independent
commissions, as distinguished from
purely executive or administrative
functions vested in those same COM
missions, But none has argued that
1t was unconstitutional for an inde-
pendent commission to perform an
executive function closely related to
its quasl-judicial or quasi-legislative
duties.
Thus. for instance, the Federal
Trade Commission makes certain in
vestlgatlons as to unfair competi-
tion," just as the National Labor Re-
latlons Board orders Investigations of
unfair labor practices" 1t is often
hard to draw the line between a pure
ly executive function inside one of
these independent commissions and a
quasi-judicial or quasi-legslative ac-
tivity. The President is right when he
points out that certain duties can be
performed by one of the existing de-
partments, like the Department of
Commerce. or by new department.
When he makes this statement, he is
on sound ground. Congress also can
at any time subtract from the inde-
pendent commissions any of their ad-
ministrative duties and put them into
particular departments, but this is
something for Congress to decide as
each specific situation arises rather
than to give the broad power to the