Jasper Finke, Crisis and Law - New York University School of Law

2. From Schechter Poultry to Jones & Laughlin
In order to evaluate the developments that let from Schechter Poultry in 1935 to Jones &
Laughlin in 1937, we must first challenge the result-focused dichotomy of ‘striking down New
Deal legislation’ versus ‘sustaining New Deal legislation’. That matters might be more
complicated than the outcomes suggest, is already illustrated if we turn to the majorities by which
the cases were decided. Jones & Laughlin (sustaining) was decided by a 5:4 majority, Carter
(invalidating) by 6:3. But the judgment in Schechter Poultry – even though it invalidated New
Deal legislation like Carter – was unanimously. Six Justices – among them Justices that were
unlikely to agree on a lot of issues, like Justice Brandeis on the one hand and Justices Van
Devanter, McReynolds and Butler on the other – joined Chief Justice Hughes in his opinion. And
even the concurrence by Justice Cordozo, joined by Justice Stone, did not add a new perspective
to the Commerce Clause aspects of the case. Quite on the contrary: there was consensus among all
Justices. 60
The simple explanation is that, against the doctrinal background of that time and the way
the case was presented by the government, NIRA was plainly unconstitutional. As already pointed
out, when the government defended NIRA’s constitutionality, it relied predominantly on
arguments of necessity, which it merged with a factual approach to direct effects doctrine. The
necessary incidents and facilities when considered alone and without reference to their
association with the movement of which they were an essential but subordinate part.
60 Even though Cardozo concurred the main difference concerned the question of how much of the power
that a statute delegates to the President, he could again delegate to largely independent agencies that had not
been set up by the statute itself. But with regard to the commerce clause Justice Cardozo held that
“little can be added to the opinion of the court. … Activities local in their immediacy do
not become interstate and national because of distant repercussions. What is near and
what is distant may at times be uncertain. There is no penumbra of uncertainty obscuring
judgment here. To find immediacy or directness here is to find it almost everywhere.”
Schechter Poultry, 195, U.S. 554 (Cardozo concurring) [internal references omitted].