Second Thought

When Mr. Chief Justice Hughes delivered an hour-long decision declaring unconstitutional that section of the National Industrial Recovery Act under which President Roosevelt had forbidden the interstate shipment of hot oil (TIME, Jan. 14), he had for an audience his eight associates, a handful of lawyers, a few newshawks and a chamber half filled with newlyweds, schoolboys and sightseers. Most of Congress was in the Senate chamber listening to Louisiana's Long start his anti-New Deal campaign. Last week on second thought Senators and Representatives realized they might have spent their time more profitably in listening to Chief Justice Hughes.

Because he thought the Press was impulsively exaggerating the significance of the Court's knockout of the oil clause of the Recovery Act, Donald Richberg, "assistant President," promptly warned: "Any lawyer should be careful to interpret an opinion of the Supreme Court as a statement of the law covering the subject matter of the opinion and not to extend its implications for the purpose of prophesying what the Court may or may not decide in other cases upon a different subject matter."

Congress, which includes more lawyers than any other professionals, did not choose to follow his gratuitous advice. Into two categories fell the legal-minded Congressmen who propounded opinions:

Beware! Those who have no love for handing more power to President Roosevelt saw myriad ways in which the Supreme Court's decision was going to change the New Deal. Republicans asked: If Congress cannot delegate powers to the President without specifying just how they shall be used, how can it obey his request for $4,000,000,000 to spend as he likes for re-employment? (See col. 1.) And how will NRA codes, each "the law of the land," yet none made by Congress, stand quot; the test of the doctrine of "strictly limited" delegation of legislative authority? Senator King of Utah sounded the mildest note of "Beware!" when he declared that the decision would be wholesome because it would make Congress "have due regard to Constitutional limitations." Sternest bewarist was Senator Borah who cried:

"The decision at least admonishes Congress that it has a duty to legislate and not abdicate. The logic of the decision would seem clearly to include the codes of so-called fair competition. Let me give you an illustration. A man writes me he wanted to start an ice plant. The community wanted him to start an ice plant. The Code Authority issued an order that he could not start an ice plant. One of the parties issuing the order was a man who had an ice plant in the same town. If the man violates this order he is sent to jail. This order violates a half-dozen provisions of the Constitution."

Ha-Ha! New Dealers in Congress, as is their wont, preferred to laugh off the Supreme Court's decision as of no great shakes. Colorado's Senator Costigan threatened that august tribunal with a Constitutional amendment which would put its nose out of joint. Texas' Senator Connally promptly planned a new measure (see p. 53) simply forbidding interstate shipments of "hot oil." New York's Senator Wagner came to the conclusion that the Supreme Court had really expressed its approval of the Recovery Act : "The opinion points out that Section 3, the code section of the Recovery Act, fixes certain standards and conditions which the President must find before he can act. ... It seems to me the Court would not have done this unless it had regarded these provisions as Constitutional. ... I consider the opinion a very limited one and indicative that the rest of the National Recovery Act is valid."

The greatest "ha-ha" at the Supreme Court's decision came from the White House. At a press conference President Roosevelt indicated that the decision amounted to no more than advice on how the New Deal should carry on its program. The decision, the President's cheery self-confidence led him to believe, was not an attack on the New Deal's objectives, merely an indication that the law must be to make the New Deal binding-- the law would be altered, a half dozen times if need be, until the right legal formula was found.

This file is automatically generated by a robot program, so reader's discretion is required.