June 23, 1934 - Article - "Emergency Laws", by David Lawrence
Some of us that survey the passing scene at Washington from day to day feel an impulse, every now and then, to go back to our textbooks and read again the truths we fancifully imagine are engraved there still. For those who ministered to us in the yesteryear used to declare:
That all power emanated from the people.
That the Federal Government was the agent of the people in performing certain duties enumerated in the Constitution.
That the states and the people retained all the powers not specifically granted to the Federal Government.
That even states could not unjustly take away the right to life, liberty and the pursuit of happiness.
Away back in that memorable pronouncement by which we declared our republic independent, those truths were held to be self-evident.
Nobody, until 1933 - the date of the second so-called revolution - ever arose to question them.
Revolution, to be sure, does not always imply physical violence. Sometimes it is the attempt to reverse an accepted process of reasoning - a turn in the wheel of human destiny.
Briefly, such effort during the past year has brought us in a practical, if not a strictly legal sense, a topsy-turvy constitutionalism which means:
That the Federal Government is no longer the agent of the people; it has become the master of the people.
That the states are no longer the sovereign entities that have exclusive powers; they have become the servants of our Federal master.
That a self-styled group of so-called liberals, otherwise known as "young intellectuals," with a passion for social experiment and a singular capacity for adroitness in the use of words and phrases, guide, direct, persuade and influence the making of laws that set up barriers between the people and the rights they once enjoyed.
You are moved to inquire, especially if you are an old-fashioned scion of the ancient school of 1928, whether the Supreme Court of the United States, the impressive opinions of Chief Justice John Marshall and of the great justices that followed in the wake of his wisdom, mean anything any more.
Put another way, law is to the brain trusters in Washington a flexible or pliable thing, a mixture of clay and water, to be fashioned to suit the artistic whims of the new day in economics. (pg. 5-6)
The hearts of these brain trusters have always beat as one. They start with certain revolutionary doctrine - that the individual subordinates all his rights to the state. They reverse at the outset the preambles of the Declaration of Independence and the Constitution when they worship the Federal octopus, the state. Once they make this transition from traditional concepts to New Dealism, they are on their way to somewhere - they are not always sure where.
"If the New Deal is not, on its face, constitutional," said one of them to me recently, "it is our duty to make the best case we can for it. After all, we are the lawyers, our client is the Government. And we shall fight in the courts to defend the ideas of the New Deal economics the best we can." (pg. 6)
Government attorneys prepare their cases carefully. This incident in a Federal court was not accidental. It represented a well-defined policy that anyone who applies voluntarily for authority to do business under a statute, the application being voluntary, waives his right to attack it in any proceedings. Most codes do not contain the protection against such tactics. Literally followed out, this would mean that although the Constitution separates Federal and state power and gives the former control over interstate transactions and the latter the power to regulate business wholly within a state, the Federal Government has by a simple device acquired jurisdiction over every kind of transaction withing or without a state.
Obviously, the Supreme Court of the United States will have to pass again on whether an individual or a business can inadvertently lose its constitutional rights, but this will not prevent Government attorneys from contending that it does. And there will be, in the meantime, no redress except to comply with Federal rules. If you are damaged - well, try to get your money back in the Court of Claims sometime in the next 50 years!
It is easy to confuse a worthy object with a proper procedure. Granting that all that is necessary to protect the innocent against the ravages of the guilty promoters, the American constitutional system puts that task up to the states. If we want to abolish the state power, a simple amendment to the Federal Constitution can do it. In other words, the people can give up any rights they wish and delegate them to the Federal Government, but this requires ratification by the people of three-fourths of the states, either in state constitutional conventions or in state legislatures. There's an exact method for this provide din the Constitution itself. Any other means of attaining the object is just plain circumvention.
It might be suggested that these powers were sought only in an emergency. But the laws that seek to regulate corporations by the Federal Government make no pretense of being emergency measures. They boldly assert permanent power. (pg. 7)
Device No. 4: This is one of the most far-reaching changes of all, for it involves a delegation to the executive branch of the Government of the powers ordinarily exercised by the judicial branch of the Government. It makes the problem of the courts that must ultimately pass upon the validity of the laws much more perplexing.
To take some examples: In the bills proposed in the recent session of Congress were four that gave judicial power to different commissions or bureaus to determine what is a "deceptive act" or "deceptive practice" in the course of business, what was a "misleading" statement in an offer to sell securities, and what was an "unfair labor practice."
Assuming that the purposes are good and that the object is to protect the public, what shall be said of a method which is in itself an abuse of power? It has always been the function of the courts to say whether injury had been sustained between individuals. It is for the courts to say whether deception has been practiced between individuals. Today one can go to jail for violating a regulation of a bureau which has the power to impose its own interpretation of the original law. This, for instance, is specifically provided for in the National Industrial Recovery Act.
This point was succinctly expressed recently in a speech by Thomas D. Thacher, who served as Solicitor General of the United States and as a Federal judge, when he said:
"These are not codes in the ordinary sense of the word. In many respects they are charters of authority granted to the Code Authorities to exercise all the powers of Government, administrative, legislative and judicial. Thus, they make the laws, construe them and see to their enforcement. These are extraordinary powers, unequaled in this country or in England, at least since the time of Henry VIII."
The people originally bestowed such vital powers on the court because the judiciary is not political. Federal judges serve for life. They have no political axes to grind. Officials of an administrative agency or commission or bureau in the Federal Government are appointed and removable by the President. They feel a fidelity to a fundamental philosophy or point of view of their chieftain; and they feel gratitude to the man who elevated them to office. Or perhaps they merely concur wholeheartedly in his economic objectives and feel that any means justifies the end.
The New Dealers, by piling up these grants of power in administrative commissions and bureaus, would put the judicial function in the executive establishment itself. (pg. 86)
By reason of the slowness of procedure and, indeed, the Government's own pointed attempt to secure delay at least until the autumn session of the Supreme Court, the vital questions of Federal usurpation of power have not come to trial, and will not until next October. All that has been before the Supreme Court has been a test of what is the right or power of a state over the business of its own state.
Unfortunately, the congressional mind is a political mind. It follows mass prejudices all too carefully. Having found ourselves in a desperate condition due to the depression, with banks closed and misery on every side, the Congress accepted blindly the leadership of the President and bowed to his will. Whatever he said was desirable, they passed. In one instance a bill of transcendent importance was adopted without having copies for the members of the House of Representatives to read.
But do the brain trusters appear on Capitol Hill with specific messages from the President? Not at all. The President is far too busy to delve into the many aspects of the problems with which the specialists or experts he has summoned to his side are familiar.
This they go to conferences with congressmen and senators and attend sessions of congressional committees and express their views with all the finality of White House approval. Mr. Roosevelt has faith in them, to be sure, or they would not be acting as his emissaries on legislative matters. To a certain extent, it might, therefore, be contended that the President is responsible for what they have been doing in phrasing legislation.
For instance: The Securities Act of 1933 - which contained some clauses that were so extreme that they stopped financing operations altogether - was the work of the brain-trust lawyers. Most of the members of Congress were not sufficiently versed in the technicalities of the security business to understand the far-reaching character of the restrictions imposed by that law. As a consequence, the recovery movement in America has suffered. Hundreds of millions of dollars, indeed billions, which should have been released in the normal refinancing operations of American business and industry were frozen. Millions of persons might have been reëmployed but for the stalemate produced by the Securities Act.
Yet, while the President may delegate to the brain trusters the task of advising the legislative body, the fault lies largely in Congress itself. And, in turn, a measure of blame rests upon those people who encourage the idea of a 100% support of any President who happens to be personally very popular. It is a throwback to our ancestral worship of royalty - the king can do no wrong. This is the antithesis of constitutional democracy. (pg. 87)
The Constitution has provided a legislative branch, a judicial branch and an executive branch of the Government. They are intended to balance on another and to act as a check, the one upon the other. (pg. 88)
Comments: Recall the March 3 article "Two Chapters In The Story Of Gold"? Recall that around $1,400,000 in securities were sold to the investing public under the promise that the principle and interest would be paid back in gold standard dollars? Recall that the people who did this were working on the laws to repudiate the gold standard while these securities were being sold to the public? Recall that cheapening the dollar by ½ would effectively rob the people who bought these securities of half the money they paid for them? And these same people who did this claim to have the legal power to determine what was a "deceptive act" or "deceptive practice"? It's the same as giving power to thieves to make laws that determine what is or is not robbery. Does this make sense to you? It is common knowledge among people in the legal profession that in today's early 21st century system that before you can appeal to the Federal courts you must first exhaust your administrative remedies. This means going before administrative judges who are executive officials. The United States Tax Court is an example of this.