WOE UNTO YOU, LAWYERS!

involved to be recounted here, that the original Constitution forbade Congress to tax
citizens’ incomes.
It was under the Court’s “interpretation” of what the interstate commerce
clause did not mean that such New Deal laws as the National Industrial Recovery
Act and the Guffey Coal Act met their death. It seems there are two principles. One
is that Congress may regulate anything that affects interstate commerce directly.
The other is that Congress may not regulate anything that affects interstate
commerce only indirectly. Of course, there is not a word in the Constitution itself
about direct or indirect effects on interstate commerce but that does not keep those
effects from being a very vital consideration in Constitutional Law.
Applying these principles, the Court said that working conditions in
companies doing interstate business affected interstate commerce only indirectly.
So it was perfectly apparent that the N.I.R.A. and the Guffey Coal Act, both of
which made bold to regulate those working conditions, were downright
unconstitutional. But by the time the Wagner Labor Act came along a couple of
years later, working conditions in companies doing interstate business had suddenly
acquired a direct effect on interstate commerce, and so a law regulating those
conditions was perfectly constitutional. The relevant principles of Constitutional
Law remained, of course, unchanged. It was merely that, this time, a different
principle was “controlling.”
There was, moreover, a second reason why the N.I.R.A. was unconstitutional
– for the Court is not always content to kill a law with one shot of Constitutional
principle. The second reason is especially interesting because it involves one of
those chunks of Constitutional Law that is not even remotely derived from anything
written in the document that most people think of as the Constitution. The Court just
made this up all by itself.
The basic principle that the Court made up is that Congress may not delegate
or hand over any of its lawmaking power to anyone else. Now it is clear that if this
principle were really followed there wouldn’t be any United States government. All
the thousands of rules and regulations and orders, little laws every one of them, that
are formulated day after day by every branch of the government – by the
commissions, like the Interstate Commerce Commission and the Federal Trade
Commission, by the departments, all ten of them, and by the branches and bureaus of
the departments, like the Patent Office and the Coast Guard and the rest – all these
rules and regulations would have to be passed by Congress itself. It is only because
Congress has always delegated the largest part of its lawmaking power, after laying
down the broad, general outlines of a law, that the federal government has been able
to function at all.
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