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

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commerce”. 62 Thus, despite the fact that the NLRA established the National Labors Relations Board (NLRB), granted workers the right to unionize, defined unfair labor practices, and empowered the Board to prevent such practices – in other words: despite the fact that the NLRA regulated manufacturing and production – the new majority sustained it. It did so because it understood direct effect to be not a matter of principle, but a matter of degree only. 3. Facts and Doctrine By shifting the focus to a case-by-case analysis, the Court had to determine direct effects on a factual rather than normative basis. The government had obviously failed to convince those Justices who were receptive to such an understanding in Schechter Poultry by arguing that unfair competition practices in general burdened interstate commerce substantially, especially due to the unusually exigent situation. Abandoning this general line of argument, the regulatory hook for the NLRA was industrial strife. According to the government’s reasoning it could burden interstate commerce tremendously, which in turn meant that it had a direct effect on it. As Congress had the power to remedy the causes of industrial strife, it could guarantee the right to unionize, minimum wages and maximum working hours. Instead of relying on broad and generalized statements, the government decided to base the same policy objectives that had governed NIRA on a very specific claim, which it backed up with reference to experience, surveys, and facts. 63 “Before this statute [NLRA] was enacted experience had shown that industrial strife was a recurrent burden upon the interstate commerce of the nation. … [I]n many individual instances such strife eventuated in conspiracies to restrain commerce or imposed such substantial burdens upon it that penalties or injunctions were applied under the Sherman Act. These facts are clearly shown by a survey of the results of individual disputes, the statistics with regard to the total number of such disputes, and repeated federal activities in connection with industrial strife.” 64 62 Jones & Laughlin, 301 U.S. 1 (1937) 31 [emphasis added] 63 Thus, one can observe a striking similarity to the strategy pursued by Brandeis, now Supreme Court Justice himself, when he defended the Oregon statute in Muller v. Oregon, 208 U.S. 412 (1908) that restricted working hours of women; see supra note 22. 64 Jones & Laughlin, 301 U.S. 1 [emphases added].
However, in Carter Coal Chief Justice Hughes who was the swing vote in Jones & Laughlin had rejected this argument as pretence. He agreed that Congress had “the power to protect … commerce from injury whatever may be the source of the dangers” and thus Congress had “the authority to maintain the orderly conduct of interstate commerce and to provide for the peaceful settlement of disputes which threaten it.” Yet, he was convinced that Congress had used this specific protective power as a “pretext for the exertion of power to regulate activities and relations within the States which affect interstate commerce only indirectly.” 65 Thus, the question arises why Hughes changed his mind in Jones & Laughlin. Based on his reasoning it is safe to assume that the NLRA’s statutory limitation to cases that “affected commerce” played an important role, especially since the Bituminous Coal Conservation Act did not contain comparable language. Still, this restriction did not establish that industrial strife actually had a direct effect on commerce. What had to be established was a connection, first between industrial strife and the right to unionize and second between these two and interstate commerce. That denying the right to choose representatives for the purpose of bargaining collectively results in industrial strife seems evident. Hughes even considered this to be “such an outstanding fact in the history of labor disturbances that it is a proper subject of judicial notice and requires no citation of instances.” 66 Still, this link does not explain the direct effect on interstate commerce. What consequences might one strike in one factory have on interstate commerce as a whole? The answer, I argue, was not only given by abstract statistics and numbers, but by immediate experience. That a strike in one factory did indeed have a direct effect on interstate commerce became obvious just six weeks before the Court heard oral arguments in the Wagner Act cases. 65 Carter Coal, 298 U.S. 317. 66 Jones & Laughlin, 301 U.S. 42.
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Jasper Finke, Crisis and Law - New York University School of Law

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