Evening star., 1940-05-08

triotically, the
Charles G. Ross. Senate sent 1t TO
the scrap heap. Though within the
letter of the Constitution, the
Presidents proposal would have vio-
lated the fundamental constitutions
al principle Of keeping in balance
the three independent branches Of
the Government-legislative, execu-
tive, judicial.
The Logan-Walter bill, except in
the case of those agencies which
have been exempted, would subject
the administrative branch to q court
censorship as disruptive of the
proper distribution of governmental
powers as would have been the
urt-packing proposal.
Doubly Harmful.
Where the court bill sought to
aggrandize the executive arm at the
expense of the courts, the Logan
Walter bill seeks to reverse the
process and give the courts an un-
precedented and wholly unwarrant-
ed power over the day-to-day func-
tioring of the affected agencies. The
result would harm not only the ex-
ecutive branch but the courts them.
selves.
Hear the independent testimony
of the Brookings Institution:
"The ultimate consequence would
be not only to swamp the (appellate)
courts with a flood of minor ad-
ministrative matters that have never
been regarded as justifiable cases
or controversies. but to retard and
hamper the work of the executive
branch of the Government to an IN
tolerable degree. The control of the
executive branch would be trans
ferred to the courts, and the per-
formance of all executive duties
would be subjected to the super
vision and control of the judiciary.
Theoretically, this is contrary to
the basic ideas of our form of gov
ernment, which makes a clear de-
lnarcation between executive and
judicial duties. Practically, it will
destroy the efficient and expeditions
operation of the executive depart
ments and throw them into con-
fusion The cost Of government
would be multiplied tremendously.
Lack of Confidence Sensed.
1T is significant fact that certain
administrative agencies are expressly
excepted from the operations Of the
law. While there is nc objection to
freeing any agency from the shackles
of the proposed legislation, the very
fact that some agencies (such as the
Interstate Commerce Commission
and the Federal Trade Commission
are to be exempted would seem to
be an indication Of lack of conf
dence in the basic theories on which
the legislation is predicated."
Properly jealous of its own place
in the constitutional system, the
Supreme Court has yet shown its
full awareness of the rights of the
administrative agencies. This from
Mr.. Justice Stone, in one of his
opinions. is pertinent to the discus
sion of the Logan-Walter bill:
When the courts are faced with
Interpretation of the particular. ad-
ministration breaks down and the
manifest purpose of the legislature
is defeated unless it is recognized
that, surrounding granted powers.
there must be penumbra which will
give scope for practical operation.
In carrying such schemes
(for regulation by administrative
bodies) into operation, the function
of courts is constructive, not de-
structive, to make them. wherever
reasonably possible, effective agencies
for law enforcement and not to de-
stroy them"
A. A. A. Dissent Pertinent.
| And again Mr.. Justice Stone said,
in his famous dissent in the A. A. A.
case: Courts are not the only
agency of government that must be
assumed to have capacity to govern" !"
3 When the present Chief Justice.
Mr. Hughes, was Governor Of New
York, he made a memorable speech
at Elmira in 1907 in defense of pend
ing State legislation for the regula-
ton of public service corporations.
This was the speech in which he
said: I'VE are under a Constitution.
but the Constitution is what the
judges say 1t is, and the judiciary
Is the safeguard of our liberty and
of our property under the Constitu-
ton" But Mr.. Hughes, pleading for
the creation Of regulatory COM
mission with broad powers, gave the
other side Of the picture as we'll He
might have been speaking against
the hamstringing provisions Of the
Logan-Walter bill when he said:
mo more insidious assault could
be made upon the independence and
esteem of the judiciary than to
burden 1t with these questions Of
administration. Let US keep
the courts for the questions they
were intended to consider.
To say that all these matters Of de-
tail which will be brought before the
commission should, at the
option Of the corporations, be taken
into court, Is to make mockery Of
your regulation You must
have administration, and you must
have 1t by administrative officers.
l xO0 ~0A1AAOV AA0vC ~ OUA1CA WAoCs OI1CCI
the proper maintenance Of your sys-
tenn Of government. and In view Of
the wide extension Of regulating
schemes which the future is destined
to see. you cannot afford to have
that administration by your courts.
Cox States Its Purposes.
In an Illuminating colloquy in
the House, Representative Cox oi
Georgia, leading proponent Of the
Logan-Walter bill, said it was framed
primarily to get the National
Labor Relations Board and the Wage
and Hour Division of the Labor De.
partment.
The obvious answer is that Il
Congress wants to get" or curb tn,
powers Of, any specific agency 4
ought to pass law addressed to ths
specific requirements Of the case
and not, in the language Of Dear
lands Of the Harvard Law School