THE PRESIDENCY: Dead Deal?

For most of last week the busiest thoroughfare in Washington was a small private corridor leading from a White House side door to the President’s office. In that office sat a man whom the Supreme Court had stunned to silence with its annihilation of NRA. Down that corridor marched huffy Hugh S. Johnson who for a twelvemonth was NRA personified; sickish Donald Richberg and sheepish Solicitor General Reed whose defense of NRA before the Supreme Court had proved so footling; William Green and John L. Lewis to whom NRA was a professional gift from heaven; dapper Averell Harriman who manned NRA after its first champions had departed; gawky Attorney General Cummings who had tried to enforce NRA; Felix Frankfurter whose advice to stall off as long as possible a clear-cut court test of NRA’s constitutionality had proved so ingloriously wrong.

For days these men and many another poured into Franklin Roosevelt’s big receptive ear words belligerent and resigned; advice—social, legal, political, economic; prayers, exhortations, warnings, suggestions. The President listened, nodded, listened some more.

After two days 200 newshawks flocked in for their first postdecision interview with Franklin Roosevelt. The country, badly confused, seemed eager to take its cue from him. But the President was not yet ready to play the prompter’s part. To persistent questions, he smilingly retorted that the real spot news on NRA was not in Washington but out in the country, in mine and factory, in shop and office where the first effects of the Supreme Court’s ruling were already evident (see p. 63). When someone asked specifically about General Johnson’s White House visit, the President scoffed: “Spotted news!”

Two days later the same 200 newshawks were back in the President’s office where they found the stage all set for an extraordinary performance. At one side of his desk were stacked about 20 selected telegrams; at the other lay an open copy of the Supreme Court’s decision. In the background sat Mrs. Roosevelt, knitting a blue sock. Another chair behind the President was reserved for Senate Majority Leader Joseph Robinson who arrived ten minutes after the show started. Circulating among the correspondents was Democratic Pressagent Charles Michelson, old, wise, grumpy.

President Roosevelt rocked back in his swivel chair, lighted a cigaret, jestingly asked the assembled reporters if they had any news for him. When the consequent titter died down, a voice asked if he had reached any conclusions about NRA. He had and for the next hour he proceeded to give them to the Press, not as a straight quotable interview, but as an indirect monolog addressed to the nation at large. Though, by this technical device, the President was relieved of black-&-white accountability for all he said, the 200 newshawks were able to reconstruct from their notes an historic political speech. Its exact words might be missing but from the front page of every newspaper in the land, the country clearly understood the President’s remarks to have been, in effect, as follows:

Up to last night—not counting this morning’s mail—between 2,000 and 3,000 appeals for continuing NRA have come to the White House. They show that people realize that something will have to be done, but people don’t yet realize what the Supreme Court decision means in plain language. (The President began to read excerpts from the stack of messages in his hand.) Here’s a telegram from the druggists of Indiana: “Save us small business men from the ruthless destruction caused by the killing of NRA. . . .” Here’s another from New York: “Issue a proclamation calling for observance of NRA and hold a plebiscite on continuing it. . . .” Here’s one from Hastings, Neb.: “Issue buttons so that everyone can wear them, saying I’M FOR NRA. . . .” Here’s one from a prominent Atlanta attorney suggesting a law fixing hours and wages of labor, setting up a special court and denying the Supreme Court power to review its decisions. . . . ( Having read a dozen extended quotations the President paused dramatically.)

This decision is probably more important than any laid down by the Supreme Court since the Dred Scott case. The country is up against a practical proposition. I’m not bitter about this decision but I deplore it. (He picked up the opinion, began to speak with great emphasis.) The Court ruled that no matter what kind of emergency the country gets into, all laws must be strictly constitutional. It says “extraordinary conditions do not create or enlarge constitutional powers.” (He put down the decision, lighted another cigaret.) That’s a very broad statement. During the War Congress passed a lot of extraordinary legislation but none of it was argued before the Supreme Court.

As for the Court’s declaring that the Congress illegally delegated its lawmaking powers, that is not so important. Undoubtedly a new act could be drawn to satisfy the Court, an act like the Federal Trade Commission Act. The question of delegated authority is not insurmountable but the Supreme Court’s definition of interstate commerce has really important implications. Why are so many of these telegrams futile? Because people don’t understand the implications of the Court’s decision. The Court has practically gone back to the old Knight case of 1885 which limited “interstate commerce” to goods in transit. Since then, the Court has made the interstate commerce clause apply to a great many things not only in transit but affecting interstate commerce. When the Constitution was written the country was in the horse and buggy stage. There was no interstate commerce to speak of. … There was no problem of unemployment or buying power, no national social questions. Even ethics were different. If one fellow could get away with skinning another in business that was all right. Now transportation has brought the states together and the country has a new philosophy of business. . . .

Here (pointing to p. 23 of the decision) the Court quotes an old opinion which says building construction is “as essentially local as mining, manufacturing, or growing crops.” There are five major human activities and four of them are listed here as not being part of interstate commerce. The fifth is transportation. Construction must have been considered local (the President grew ironical) because a house is built only on one spot although its materials come from everywhere. No matter where coal, oil or copper may be shipped the Court implies that their production is not interstate commerce. If I started manufacturing toothpaste at Hyde Park, I would not be engaged in interstate commerce even though all but one or two carloads of my stuff were shipped out of the state. And growing wheat is not interstate commerce even if a farmer’s wheat goes to an elevator in the next state, is sold in all the states of the Union or even abroad.

Does this decision mean that the U. S. has no control over any national economic problem? The simplest example is crop adjustment. Is the Federal Government to take its hands off adjusting crops? If we do, it is a safe bet there will soon be 36¢ wheat and 5¢ cotton. . . .

In years past Federal courts granted injunctions against miners’ unions under the interstate commerce clause because the coal they mined went into interstate commerce. Now the shoe is on the other foot. When the Government tries to protect the wages of miners, the Court rules they are engaged in purely local business.

This brings us to an issue, not a partisan issue but a national issue : Are the people going to decide that the Government has no right or power to enter into any national economic problem? Shall we view social problems in the same way?

Has the Government no right to improve conditions? We cannot turn back to an era when national decisions on agricultural, social and economic problems are left to the 48 states. When I was Governor some manufacturers threatened to leave New York and move to Pennsylvania if we passed laws regulating them. Leave such matters to the states and you get sectionalism. Before NRA, textile wages in the South were $5 a week lower than in the North. NRA reduced the differential to $2.50 and was planning to reduce it still further.

Here are a lot of resolutions sent me by businessmen promising to live up to code standards, but most of them add “as long as we are able.” Even a well-meaning businessman will have to cut wages if the 10% of chiselers in every business force him by cutting prices. Voluntary co-operation is hopeless. Here’s a columnist-saying that he hopes the death of NRA will end a lot of industrial confusion. I hope he is right. And here is an editorial printed in a nation-wide chain of newspapers giving thanks that “at last the rule of Christ is restored.” That school of thought is just too naive.

The people (he dropped his sarcastic tone, spoke with earnestness) have got to decide—not this autumn or this winter but over a period of five or ten years—if they are going to relegate to the states control of social, economic and working conditions. They must decide whether to restore to the Government the powers that every other national government has. This is the biggest question before the country in years, as big as the choice between war and peace. . . .

If the implications of the Supreme Court’s decision are carried to their logical conclusion they would strip the Government of almost all its powers. The Federal Alcohol Control Administration operated through a code. That’s out and now the Government has no control over liquor. That is too ridiculous for words. There is serious question about the Securities Act of 1933 and the Securities and Exchange Act. Suppose the Court holds that securities, like a crop, originate in one state and aren’t interstate commerce? And the New York Stock Exchange is rooted to the ground in New York. The Triple A may not be legal if the Government has not the right to do anything about a crop.

Don’t write that this is a question of going “right” or “left.” That’s first year high school language. The question is whether we are relegated to the horse and buggy age.

Such pessimistic talk at the White House promptly produced headlines like:

NEW DEAL DEAD—F. D.

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HORSE AND BUGGY LAW BACK—ROOSEVELT

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PRESIDENT SEES NEED FOR NEW CONSTITUTION

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GOVERNMENT POWER IS 1936 ISSUE

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Alarmed, the stockmarket dropped sharply, along with wheat and cotton (see p. 63). New Dealers were left flabbergasted by the thought that other recovery and reform agencies might be pulled down into the wreck of NRA. The question of salvaging NRA was almost forgotten in the confused hubbub over the grave constitutional issue raised by the President. That that issue would be the fulcrum of the 1936 Presidential campaign most political dopesters had no doubt. Dismayed by such a performance from a man who only two years ago was saying “the only thing we have to fear is fear” and promising to be the first to admit his mistakes, the patient, fatherly New York Times used comparatively strong language when it said: “No one could have expected him to betray the pique that appears in his remarks. . . . People will believe that he meant it when he said that he was afraid of wheat falling to 36¢ and cotton to 5¢. . . . It comes ill from the President who has been constantly preaching confidence and good cheer.”

The fact was soon recognized in Washington that Franklin Roosevelt had made the worst of the cake to provoke a reaction, not so much against the Court—for its unanimous decision made that difficult—but against the Constitution. His speech to the Press was obviously a trial balloon to see whether the U. S. would rally to a constitutional amendment giving the Federal Government centralized powers which it has never had.

Such a bold move by a Democratic President left his followers in Congress none too happy. Before nightfall Senator Robinson hastened to assure the Press that “the President has not renounced the Democratic theory of states’ rights.” Most Democratic Senators were decidedly lukewarm, if not openly hostile to what sounded very much like a revival of the doctrines of the Federalist Party, dead since 1817. Said Florida’s Fletcher: “We have tampered with the Constitution enough already.” Said Texas’ Connolly: “I would be very slow to vote for an amendment.” Said Missouri’s Clark: “I had assumed that the question of Federal and state government under the Constitution had been settled for 150 years.”

First to give a direct answer to Franklin Roosevelt was that famed constitutional warhorse, William Edgar Borah. Taking to the radio, the Senator from Idaho cried: “We live under a written Constitution. … A decision of the Court upon the theory that the Court consider anything other than the terms of the Constitution itself would create a complete judicial oligarchy. It would leave the question of the extent of power to the determination of those exercising power—a complete definition of despotic power.

“Before we fully make up our minds, therefore, to govern permanently ‘130,000,000 people from Washington … let us bear in mind that these things cannot be done, cannot even be overseen by the President. . . .

“These things are done by thousands of bureaucratic ascarides who glory in the display of arbitrary power. … In the prolific mucus of delegated power are laid and hatched these ravenous insects. . . .

“We all appreciate the serious task devolving upon the general government at this time, but the constitutional powers which have been sufficient to deal with the great emergencies of the past we still enjoy unimpaired. The decision of the Supreme Court curtails them in no respect.

“The power to regulate and control interstate commerce is full and complete. It may be that greater care and more patient consideration of measures are required. But the country need not doubt . . . that the constitutional authority is sufficient to meet the emergency at hand.”

In his appeal to the nation over the heads of the Supreme Court, President Roosevelt had shrewdly avoided all technical particulars about amending or rewriting the Constitution. While the country stewed over his provocative generalities, the No. 1 New Dealer who now wants to deal again, drove to the Washington Navy Yard, waved a cheery good-by to friends ashore, sailed down the Potomac for a weekend’s rest on the Sequoia.

*Mark Sullivan.