Out on Chickens

Last week in Washington, 1,500 businessmen descended on the Capitol in a fleet of taxicabs to tell Congressmen that they must vote for a two-year extension of NRA. In Manhattan William Green of the A. F. of L. roared to 18,000 clothing workers a threat of a general strike if Congress did not vote a two-year extension of NRA. At the White House Franklin Roosevelt came out strongly for two more years for NRA. The Ways & Means Committee of the House obediently prepared to report a bill for NRA extension. And the Supreme Court knocked the constitutional props out from under NRA in the first test case of that No. 1 New Deal agency.

Guards stood at the door of the Courtroom keeping crowds of tourists at bay in the corridors. Newshawks and those with passes entered the Courtroom through the adjoining marshal's office. At the counsel table sat Donald Richberg and Solicitor General Stanley Reed who had argued the test case, both in fine fettle.

"I feel," said Mr. Richberg, grinning, "as though I were waiting for a jury to come in--guilty or not guilty."

Only persons to worry, however, about legal guilt were four Brooklyn poulterers, Joseph, Martin, Alex & Aaron Schechter. Were they guilty of violating the law of the land because, contrary to the Poultry Code, they had allowed their customers to pick what chickens they bought, instead of making customers take chickens by the coop, good and bad alike? Were they guilty because, also contrary to code, they had sold an allegedly sick chicken? Guilty for not paying their employes code wages, not working them code hours? For not making proper code reports? For conspiring to do these things? A Federal Circuit Court of Appeals had held them guilty on 17 counts, innocent on only two concerning wages and hours (TIME, May 13 et ante). It was for the Supreme Court to decide finally whether the Schechters were guilty of breaking a real law or whether NRA was guilty of having regulated U. S. business for nearly two years under a false law, unconstitutional and invalid.

The Court filed in looking cheerful, particularly Chief Justice Hughes, Justices Stone and McReynolds. By turns the Justices began to read decisions. Justice Butler read one of little public interest. Justice Sutherland read one making news, in which it was held that President Roosevelt had no right to oust a Federal Trade Commissioner without specific cause (see p. 11). Next, more news: Mr. Justice Brandeis declared the Frazier-Lemke Farm Mortgage Bill unconstitutional (see p. 15). Then all that news of a newsworthy Court session grew inconspicuous. The Chief Justice announced that he would read the Court's decision concerning four poulterers from Brooklyn. Donald Richberg visibly stiffened and grew pale. The Chief Justice began to read. Only a few sentences had left his mouth when a newshawk scribbled on a piece of paper: ''Can there be a new Recovery Law?", passed it to Donald Richberg. A moment later it came back, bearing the comment of the NIRB Acting Chairman--a huge question mark.

The Chief Justice had just stated flatly that the nine Justices unanimously agreed that the power of code-making was an unconstitutional delegation of legislative authority by Congress. That meant that 557 NRA codes were no longer the law of the land. Said Chief Justice Hughes:

"The point is urged that the national crisis demanded a broad and intensive cooperative effort by those engaged in trade and industry, and that this necessary cooperation was sought to be fostered by permitting them to initiate the adoption of codes. But the statutory plan is not simply one for voluntary effort. It does not seek merely to endow voluntary trade or industrial associations or groups with privileges or immunities.

"It involves the coercive exercise of the lawmaking power. The codes of fair competition which the statute attempts to authorize are codes of laws. If valid, they place all persons within their reach under the obligation of positive law, binding equally those who assent and those who do not assent. Violations of the provisions of the codes are punishable as crimes. . . .

". . . Section 3 [NRA] of the Recovery Act is without precedent. It supplies no standards for any trade, industry or activity. It does not undertake to prescribe rules of conduct to be applied to particular states of fact to be determined by appropriate administrative procedure. Instead of prescribing rules of conduct, it authorizes the making of codes to prescribe them.

". . . We think that the code-making authority thus conferred is an unconstitutional delegation of legislative power."

This would have been enough for Mr. Richberg but he had urged the court to settle the question of the Federal Government's right to regulate local wages and hours because they "affect" interstate commerce. Mr. Hughes obliged, by knocking NRA down on a second count:

"If the Federal Government may determine the wages and hours of employes in the internal commerce of a state, because of their relations to cost and prices and their indirect effect upon interstate commerce, it would seem that a similar control might be exerted over other elements of cost also affecting prices, such as the number of employes, rents, advertising, methods of doing business, etc.

"All the processes of production and distribution that enter into cost could likewise be controlled. . . .

"It is not the province of the Court to consider the economic advantages or disadvantages of such decentralized systems. It is sufficient to say that the Federal Constitution does not provide for it. ...

"Without in any way disparaging [the Administration's] motive, it is enough to say that the recuperative efforts of the Federal Government must be made in a manner consistent with the authority granted by the Constitution.

"We are of the opinion that the attempt through provisions of the code to fix the hours and wages of employes of defendants in their intrastate business was not a valid exercise of Federal power."

Mr. Richberg was a very glum man as he left the Court, started for the White House. "The decision was rather sweeping," he murmured. Emerging from a solemn conference with the President, Mr. Richberg announced that codes would no longer be enforced, asked employers please to obey them anyway.

What further thoughts Franklin Roosevelt had were not disclosed. Felix Frankfurter, who was credited with advising the President to postpone a court test until NRA was an established success, and Mr. Richberg, who had declined to make the Court test on the Belcher lumber case (TIME, April 8) and then picked the Schechter case as the best way of taking NRA to Court, must both have felt distinctly sheepish. New Deal lieutenants on the House Ways & Means Committee fiddled around fruitlessly with a new bill to plug the holes the Supreme Court had dug in the Recovery Act.

In the Senate interest in debating the AAAmendments was lost while Senators sat at their desks reading the decision. Senator Borah remarked that the decision would probably affect the future of AAA as well as NRA. Nobody knew yet just how many New Deal measures delegating power to the Executive or regulating business that "affects" interstate commerce might be virtually outlawed. But now that the Supreme Court had broken the back of NRA over a coopful of chickens, anything was likely to befall the New Deal from that august tribunal.

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