The New Deal and the Constitution

For Constitution Day – – –

WASHINGTON, Sept. 17 — Today being Constitution day, it is natural that the articles and clauses of the historic charter by which America is governed should, in the light of recent events, undergo scrutiny by those who cherish its great usefulness to our social and economic life.

Unfortunately, the discussion has become partisan. Republican speakers have emphasized the acts of the New Deal as in violation of the constitution. This gives disinterested criticism an atmosphere of political combat, when, as a matter of fact, judicial questions should not become in any way involved in politics.

But the occasion for inquiry as to the origin of the powers being exercised by the President nowadays is not the less important because it has regrettably, tho inevitably, become a part of the political scene. Several queries project themselves today. Where, for example, is there a “breathing spell” clause in the constitution?

Just a few days ago, the chief executive announced to the country that his “legislative program” had reached “substantial completion.” Business men, glad of any promise of a let-up in the era of encroachment by government upon private rights, looked upon this assurance with mixed feelings. They welcomed the promise of a “breathing spell.”

But quite generally overlooked was the fact that so changed has become the exercise of executive and legislative power in the United States under the Roosevelt administration that, because the executive and legislative branches have become, for all practical purposes, consolidated into one, it is from the White House that the announcement of the “substantial completion” of a legislative program comes nowadays.

When Mr. Roosevelt speaks of “substantial completion,” he implies, of course, that he will not ask for further powers from congress. But, it will be asked, what further powers can the chief executive possibly need? Not many. The President, by abdication of the legislative body, called congress, already has the following powers today that have been delegated to him:

1. More than $4,800,000,000 has been appropriated for the use of the executive in his own discretion. Congress surrendered its privilege of specifying the uses to which the money should be put, as has been customary for more than 145 years.

2. The President has the power to order farmers to plant only those quantities of wheat, cotton, corn, potatoes and other crops that he sees fit, and to punish those who disobey his decrees.

3. The President can appoint the members of a board responsible only to him and such board is to regulate the hours of work, rates of wages, quantity of output and other conditions for the conduct of coal mining and distribution.

4. The President has the power to appoint a board, responsible to him, which shall determine employer and employe relations in all businesses and industries “affecting interstate commerce.”

5. The President, thru a federal communications commission, controls the radio and other forms of communication.

6. The President, thru the securities commission, controls the electric power and light and gas industries and may order his commissioners to eliminate or retain such corporations as he and his associates in their discretion thing are “necessary” or “economically integrated.”

7. The President, thru the federal reserve board, whose members he appoints, can control the flow of credit and its operations thruout the country.

8. The President may proclaim changes in the tariff within certain upper and lower schedules.

9. The President, thru a federal coordinator, controls the operations of the railroads of the United States.
10. The President, thru a commission of his own choosing, controls the uses of capital in industry. The commission approves or disapproves registration statements at will, and, without these licenses, new capital cannot be obtained by industry.

There are, of course, many other delegations of power. Some of those mentioned above are plainly unconstitutional in themselves; that is to say, even the congress does not possess the powers it has tried to delegate to another branch of the government. But nowhere in the constitution is there any clause permitting congress to delegate its lawful powers to the executive.

The supreme court has held that, where the congress turns over to an executive bureau or commission the task of administering a law, the instructions must be so explicitly worded that citizens may clearly know the limits. But where congress delegates to a bureau or executive commission the job of carrying into effect a legislative “objective,” this is too vague, according to the supreme court.

The making by bureaus of so-called “regulations” which have the effect and force of law is really a delegation of the legislative or law-making power itself, and is, therefore, a violation of the constitution.

The supreme court has upheld delegation of power for revision of a tariff, but has insisted that this is merely a matter of calculation of a rate within the limits of a formula mathematically set by congress itself. The court has recognized that administrative bodies must have certain discretion to enforce laws, but has nevertheless maintained that there is a difference between efficient administration and usurping the powers of legislation itself.

Thus, the code-making bodies of the NRA had such wide discretion that they issued rules the violation of which was a crime, just as if congress itself had passed a law to that effect.

It may be asked, what is the difference between government by commission today and the same thing as practiced under preceding administrations? The truth is encroachment on the power of the legislative by means of the governmental commission on a limited scale actually started under Republican administrations and now has reached its climax under the Democrats. Also, in the old days, congress was insistent that each commission should be bi-partisan; that is, it should represent opposite political beliefs.

But Mr. Roosevelt, by his appointments, gets around the basic purpose of the majority and minority viewpoint idea by finding persons previously affiliated with the opposite political party but sharing at the moment his economic and social philosophy.

Thus, practically every federal commission today is dominated by appointees of Mr. Roosevelt who are partisans of his own philosophy and trends toward state socialism or the centralization of power in the federal government. In this way, the congress, having abdicated its powers to the executive, has, in effect, turned over to a small group of men, directed and controlled by the President himself, vast and almost unlimited powers of expenditure of public funds and administration over the affairs of industry and agriculture from production to distribution.

On this Constitution day, even the New Dealers themselves might reflect on the Manner in which, some day, these same powers may be utilized for another purpose, perhaps not so beneficent, when the “wicked Republicans” or a President of dictatorial inclination belonging to another political party happens to get into the White House.

(Copyright, 1935)

Lima News (Lima, Ohio) Sep 17, 1935

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