Hip Pocket Law

One day last week the nine wise faces of nine elderly justices of the U. S. Supreme Court crinkled in sedate amusement as they wrung from a perspiring Assistant Attorney General the tale of how the New Deal's lawmaking machine had slipped a cog.

In the course of his attack on the Constitutionality of the Recovery Act, an attorney for two Texas oil companies had mentioned to the Supreme Court the case of four oilmen jailed for violating a supposed provision of the Petroleum Code. A trial court ruled the provision unconstitutional. The Department of Justice prepared to appeal the decision only to discover that the provision was no part of the land's law. By some oversight it had been left out of the revised copy signed by President Roosevelt though included in printed copies circulated by the Petroleum Administration (TIME, Oct. 22). The oil companies' attorney last week assured the Supreme Court that the only true copy of the oil code he had ever seen was "in the hip pocket of an agent sent down to Texas from Washington."

If the Department of Justice could not keep track of the vast jungle of executive laws burgeoning in Washington, how could John Businessman be expected to? The Court proceeded to quiz Assistant Attorney General Harold M. Stephens as follows:

Mr. Justice Brandeis: Are the facts recited in connection with this code applicable in general to the other codes?

Stephens: I think that is so.

Brandeis: Well, is there any way by which one can find out what is in these executive orders when they are issued?

Stephens: I think it would be rather difficult. . . .

Mr. Justice McReynolds: How many of these orders and codes have been issued in the last 15 months--several thousand?

Stephens: I am not certain, Your Honor, but I should say several hundred.

Wide of the mark was the Assistant Attorney General. Of 6,910 executive orders issued by 31 U. S. Presidents, 1,013 have been signed by Franklin D. Roosevelt chiefly under the emergency powers delegated to him by Congress. He in turn has delegated most of these quasi-legislative powers to NIRB, FACA and the Secretaries of the Interior and Agriculture. Last summer the American Bar Association estimated that in its first year NRA had forbidden some 5,000 business practices, written 10,000 pages of substantive law. Last week investigation disclosed that in 1934 NRA has issued 10.269 administrative orders, AAA more than 300, the Petroleum Administration 350.

What has become of them? The Supreme Court gave the Justice Department two days to find out. Easily traced were those signed by the President. They are filed at the State Department, printed as separate Government documents. But all the others were scattered through the files of the agencies which had issued them. Some had gone out as press releases, as mimeographed sheets or pamphlets to those who had put themselves on the agencies' mailing lists. Others were simply tucked away in the files. Nowhere in the land could a businessman anxious to obey the law find in one place all the laws he was supposed to obey.

"Hundreds of businessmen," declared the chairman of the New York Bar Association's Committee on NRA, "having complied with every provision of every code that they ever thought applied to them, are now awakening to the unpleasant realization that they are today in peril of criminal penalties, injunction proceedings, damage suits and heavy money forfeitures for failure to comply with unsuspected provisions of other codes, to which they have never paid any attention, because they never have realized that these codes were in any way applicable to them,."

Proposed months ago by a Federal committee was an Official Gazette in which all administrative orders would be compiled. Objectors killed the idea by arguing that it would put the Government into the newspaper business. But last week the Supreme Court's curiosity spurred President Roosevelt to promise to look personally into the matter of "hip pocket" law and see what could be done to remedy the situation.

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