Stop-Gap

In southwestern Texas for a fortnight little furry cotton seeds have been lying in the womb of Mother Earth sucking up winter rain, beginning to unfold inside, thrusting out little white roots, pushing up diminutive stalks. Day by day and mile by mile to the east and north other furry cotton seeds are being stuck into the ground for the same purpose. In a few weeks the cotton planting season will be over. For that reason the U. S. Senate last week curbed its 96 tongues, limiting each to 15 minutes exercise until a new farm bill should be passed. Passed in a few hasty weeks of 1933's emergency, the original AAA had imperfections which a majority of the Supreme Court was quick to spot last month. AAA's substitute was riding through Congress last week under circumstances not much better. Pressed by sprouting cotton seed and impatient farm leaders, Senators had no more time to consider than they had in 1933. Pressed by the political necessity of adopting a bill that would result in liberal distributions of cash before Election Day, they had little latitude. The outcome of virtually every roll call could have been predicted on the basis of political expediency. Hence the chief topic of debate while the bill was on the Senate floor was the U. S. Supreme Court, whether its AAA attitude was right or wrong, whether its powers should be limited, whether it could be fooled. The Plan. The great farm bill of 1936 went into the Senate merely as an amendment to the Soil Conservation Act of 1935, which originally gave the Secretary of Agriculture permission to spend his spare time and any odd change available in preventing soil erosion (TIME, Jan. 27). The "amendment" gave him power for two years to pay farmers not only for preventing erosion but for conserving "fertility" by growing soil-conserving crops (e. g., clover) instead of various cash crops (e. g., cotton, corn, wheat) whose price Congress wants to boost. The bill limits the amount that he may spend for this purpose to $500,000,000 a year. By not imposing any taxes to raise this money (taxes are to come later in another bill), the AAA substitute reduced to a minimum the chance of any taxpayer suit being brought in which the new law might be declared unconstitutional. Far from sure, however, was the New Deal that this plan would either achieve its purpose or be safe from Supreme Court destruction. Therefore it was treated as a two-year stopgap. For permanence it provided an oblique means of crop control; the new bill permitted the Secretary of Agriculture to provide the money and direction to operate crop control machinery set up by law in each of the states--the so-called "48 little AAA's." All each state would have to do was to pass a law giving "an agency" powers which to Secretary Wallace seemed sufficient to carry out the purposes of the Soil Conservation Act. The Secretary would then "approve" the state's agency (which in most cases is expected to be the local crop control board of the late AAA) and provide the funds for the benefits it is to pay farmers. States which do not "cooperate" will get no benefits after two years. State laws, once passed, cannot be questioned on the ground that the Federal Government's powers are limited. Attempts on the floor of the Senate to substitute Domestic Allotment for this plan, to instruct the Secretary of Agriculture not to raise the price of farm products to a point that would cause consumers to pay more proportionally for food than in pre-War days, to prohibit the grazing of cattle on land taken out of crop production, were all voted down with ease. One important amendment to the bill was adopted: flood control was added to the things on which Secretary Wallace could spend money, thus opening up to him vast opportunities to alter the natural drainage system of the U. S. The Court. Best oratorical efforts of the debate were devoted to the Supreme Court. In what amounted to the first serious Senate sound-off on the AAA decision, Nebraska's old, white-crested George William Norris spoke for two hours in spite of the limitation on debate. Declared this Republican New Dealer: "I have no doubt of [the bill's] constitutionality but I say, frankly, I do doubt whether it can receive the approval of the Supreme Court. ... I think the [AAA] decision is an amendment to the Constitution, but that is not new. The Court has amended the Constitution before. In fact, the Supreme Court now, in effect, for all practical purposes is a continuous constitutional convention. The people can change the Congress, but only God can change the Supreme Court. "It is a conceded proposition of law, I think, that an act passed by Congress should not be declared unconstitutional unless it is unconstitutional beyond a reasonable doubt. The fact that such laws are held unconstitutional by our learned tribunal by a 5-to-4 decision of itself raises a reasonable doubt. Hence it should not occur. If the laws of Congress should be sustained as constitutional, unless they are unconstitutional beyond a reasonable doubt, it would follow as night follows day that any decision of the Supreme Court holding a law unconstitutional would have to be agreed to by all the members of the Court."

Chief job of answering the thrusts of unconstitutionality which Republican wheelhorses hurled at the AAA substitute fell to Senator Joseph T. Robinson, who would like some day to sit on the Supreme Court himself. So angry grew the Arkansan in argument with Senator Hastings of Delaware, so violently did he thump his desk, that he broke his inkwell.

"Do you mean to say," demanded Senator Hastings, ''the Secretary of Agriculture will not be able to control production under this proposal in violation of the Supreme Court decision?"

"I certainly do," roared Senator Robinson.

When Senator Robinson took the floor himself, he was bitter:

"Until the Supreme Court implied in its argument a few days ago that agriculture is of mere local concern, no authoritative body in this land has made a contention contrary to regarding it as of national concern."

But Senator Robinson might have saved his breath. In an election year the U. S. Senate would grant itself the benefit of any reasonable doubt. With Senators from the industrial Northeast voicing a footless "No," the farm bill was thumped through the Senate, 56-to-20, sent to the House.

The Issue. When Senator Norris declared that "only God can change the Supreme Court," he was delicately referring to the fact that most of the Justices are of great age and the New Deal may expect to fill some vacancies-by-death on that bench before long. But many others than God were last week considering the possibility of altering the Supreme Court. In various nooks & crannies about Congress were concealed embryonic constitutional amendments giving the Federal Government power to regulate agriculture, bills to forbid the Court from declaring laws unconstitutional, to require two-thirds, three-quarters or unanimous votes by the Court to declare laws unconstitutional, etc., etc. Attorney General Cummings admitted that, "as a mere matter of routine," he had made a study of that type of measure. Various groups were urging Congress to take matters out of the hands of God and many a Congressman was willing to do so.

Yet no such proposition was being seriously pressed, because it was well understood that Franklin Roosevelt did not want the issue raised before election. Washington needed no imagination to guess why. It would give Republicans the best talking point since Article X of the League of Nations' Covenant dominated the 1920 campaign. If the Federal Government were given power to regulate agriculture, GOPoliticians were ready to bellow, it could forbid farmers to raise any kind of breakfast food that the President did not like. If the Supreme Court could not declare a law unconstitutional, Congressmen could vote themselves into office for life. If a unanimous vote of the Court were required to declare a law unconstitutional, a man could contest an act and lose his case because of a "majority" decision written by one reasonable doubter although a "minority" of eight Justices might declare the litigant quite right.

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