Evening star., 1938-05-31

| problems and the situation In the
Territories. We must not forget Puer-
to Ricos i.so0.oo population. for in
stance.
I have often thought, though, that
If one community or its representative
landlords would let me have q spacious
apartment beautifully furnished for .
small rental, another community
should do as well, and that II could
60 into Western restaurant and eat
heartily for q few dimes, ought to
be able to in other sections. Try as
we will, We cannot arbitrate whole
sections into exact duplicates Of one
another. What We can do Is set
high goal and work to it. therefore
favor setting 40-cent-an-ho wage
level for all sections of the country
and permit sections and industries to
show cause as their turn comes why
they should not be unexempted from
its terms.
Before proceeding with q formal
comparison Of the Senate and House
wage-hour bills. let me summarize the
purely theoretical part Of this talk, as
follows: The enactment to come, If
one does come, Will be congressional
in origin and industry and labor need
not distrust it for it will be Congress
work for the good Of each; the Senate
and the House are not necessarily
pitted against each other and We who
are to be conferees will not attack
our task in this mood; that the gods
Of luck should smile on that side
with the best labor philosophy when
the two come to agreement after their
differences; that 1t should be remem-
bered that each wants to do the
same thing and that progressive
spirit motivates us both, and this
being true 1t should not be difficult
TO get togther; that We are writing
bill that will certainly 80 to the
Supreme Court at an early date; that
in aiming at level standard OF lv-
ing we should appreciate that there
are no levels today; that under no
circumstances should we deliberately
disemploy men and women; and that
we ought to set our standards nigh
and try to live up to them.
The following discussion and COM
parisons leave the realm Of history
and theory and are hard, practical
facts.
Supervision One Disputed Point.
The first point of controversy is with
respect to whether q wages and hours
law, or as it is entitled, q Fair Labor
Standards Act, should be administered
by q board Of five persons constituting
what might be called an independent
ofYice, such as the Federal Trade or
the Interstate Commerce Commission,
or whether the administration of the
law should be under the Secretary OF
Labor. The Senate has favored
board, the House has favored the
Secretary of Labor as administrator.
Before we hasten to answer we must
see the effect Of either. The admin
istrative authority. whichever one 1t
is, will not have wholly administrative
powers. There will be delegation, If
not Of powers. then OF rights to exc
cute those powers, and there Will be
q delegation, If not Of legislation, at
least Of authority to impose or re-
strain the legislation, in other words
to use discretion. Now whenever one
mentions the term "a delegation" be-
fore q group of lawyers, he starts an
argument. There Is no fine line OF
constitutionality, and there is no way
I may say with definiteness that a
delegation will or will not be upheld
as being constitutional. may say
with truth that the courts will fix
a searching eye upon any paper carry
ing with 1t what might be termed "A
delegation" The theory is, and very
properly, that Congress will do its own
legislating. Yet it is inescapable that
whatever other duties . fair labor
standards board has, they win be part
ly legislative. 1t Is true that they will
be partly judicial as well.
We must scan the record then for
some enlightenment respecting the
question whether 1t were best to give
the powers to board or to the Secre-
tary. The records show that not
single example of suspected delegation
to q truly independent board has been
found unconstitutional on this ground.
The court may well have among other
things to consider whether these quasi
legislative person or persons are under
the direction Of the executive branch
of the Government, and more speci-
fically, Of the President. Let us as
sumo that person or group exercising
legislative functions must be free, at
least free Of all except the parent
legislature, which is the Congress. An
independent board may be created
which Is free. as we learned In the
Humphreys case. We learned 1t from
another angle, but the implication is
clear. Moreover, think there Is little
doubt that its discretion should be
real, in matters such as are proposed
for it to decide, such as for example
the question of permitting an industry
or community to modify the ruling
that its workmen must be paid 40
cents an hour.
This brings us to the second point
Of the controversy, which may be
answered with the answer to the ques-
ton, should the administrative au-
thority have any discretion?
Senate for Liberal Discretion.
The Senate bill as enacted many
months ago answers YES" 1t goes
farther. It says that the discretion
should be rather liberal. It says in
effect that we are experimenting on
something almost as sensitive and
synchronized as q watch when we are
experimenting on industry, and that
we ought to feel our way, not as a
person cropping through darkness, but
as one who is climbing stair, sure
Of his every step as he takes 1t, not
in stumbling or halting manner but
in a. firmly progressive manner; in
other words, we Of the Senate dis
claim that there are no teeth in our
bill, simply because there is a dis
cretion. We say that If q given in
dustry or firm is not paying its en-
ployes 40 cents an hour, it must then
pay its employees 40 cents an hour, or
show clearly that to do so would cause
dismissal OF men or women. Once