Evening star., 1942-10-31

Heretofore the David Lawrence.
Constitution has given to Congress
the right to define the jurisdiction
of the various Federal Courts. Never
before has the executive branch of
the Government undertaken to say
what shall or shall not be review
able in the courts. Yet in the latest
executive order on wage and salary
control appears the following:
ANY determination, of the War
Labor Board Cor the Commissioner
Of Internal Revenue) shall be final
and shall not be subject to review by
the Tax Court of the United States
or by any court in any civil pro-
ceedings."
Confronted with the inquiry as to
what section of the anti-infation
law permits the executive to deny
court review, Treasury officials are
answering that they meant to deny
review only on questions of fact"
and not questions of law" But
the executive order doesn't say so,
and until the order is amended, its
language rather than the conversa-
tional interpretations OF govern
mental officials in press conferences
can hardly be taken as a formal
ruling.
No Justification for Refusal.
But even If denial of review re-
lates only to questions of fact"
there is nothing in the statute which
permits such a refusal and there is
nothing in the precedents to justify
what has been done.
Thus, one Treasury official pointed
out that the Supreme Court had
upheld the view that the decisions
of the Board of Tax Appeals on
questions of fact are binding. But
the Board of Tax Appeals is a court
created by Congress and not an
executive agency in the same sense
that the office of the Commissioner
Of Internal Revenue happens to be.
Nowhere in the vast amount of
litigation that has enveloped our
income tax laws is there any pre-
cedent for saying that either the
facts, or the conclusions drawn from
the facts by the Commissioner of
Internal Revenue, are binding on
even the Board of Tax Appeals or
on the courts generally.
"Questions of law" are closely in
terwoven with questions of fact"
and the courts have taken cases
under consideration on a question
of law and delved just the same into
the facts, often finding them to be
contrary to what an executive
agency has found.
The New Dealers have been trying
gradually for the last nine years to
curtail the right of court review,
and some of the Supreme Court
justices appointed by President
Roosevelt, who evidently believe in
an executive dominating the other
branches of the Government have
insisted that the lower courts must
not challenge the facts or findings
Of executive agencies.
Efforts to get such prohibition
written into law have failed. Usually
the law reads that the findings of
fact shall be conclusive IF based on
substantial evidence" and this per-
n1its a court to dig into arbitrary or
plainly capricious handling of the
facts.
Debate Forecast.
As for labor unions contracts or
salary agreements, these now would
be deprived of any and all review
on facts" as we'll as conclusions
drawn from the facts, but it will be
up to the courts to say whether
this denial written into the latest
regulations is in itself valid.
Many members of Congress think
that the effort to intimidate the
citizen into hesitancy to avail him.
self of the right of court review is
as vicious bit of governmental
action as has been tried by the New
Deal lawyers in many a day, and
even Democrats of prominence, re-
sentful of it, say that after election
the issue will be debated on the
floor of Congress.
When asked for the source of the
authority for denial of court review
on questions of fact, Treasury Off
.cials point to the general phrase
ology of the Limitation law which
authorizes the President to control
or fix salaries and wages. Since
Congress did not provide procedure
for court review, the executive
agencies are assuming there can be
none.
The new executive regulations are,
however, a curious mixture of the
established Internal Revenue code
and the provisions of the anti
Imitation law itself. Just how there
can be interviewer rules respecting
= salary limitations with deductions
and credits taken from other income
: tax regulations, so as to figure out
mans income and yet deny him
his right of review under income tax
laws, is mystery. The courts may
be able to solve it some day in the
avalanche of lawsuits that must in
evitably follow the executive decree
which seeks to deny court reviews.
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