WOE UNTO YOU, LAWYERS!

But the Supreme Court, as might be expected, has an answer to all this. It is in
the form of sub-principle or exception to the primary principle. It is that Congress
may delegate to other people the power to fill in the details of a law, but not the
power really to make a law. That lets out all the commissions and the departments
and the rest, and doubtless lets Congress breathe a lot easier. But when the N.I.R.A.
came up for review, despite the fact that Congress had certainly passed the law, and,
as usual, filled numerous pages with its written provisions, the Court said Congress
was handing over its law-making power to the keepers of the Blue Eagle. Why the
Recovery Administration was really making laws whereas the National Labor
Board, for instance, is merely filling details, only the Supreme Court knows and it
won’t tell. It is much too busy expounding Constitutional Law.
Perhaps the best-known of those pieces of the Highest Law of the Land that
the Court has manufactured out of ethereal logic with no help at all from the words
of the document is the piece that deals with the federal government taxing the state
governments and vice versa. It all started with Chief Justice Marshall’s famous
bromide that “the power to tax involves the power to destroy.” Therefore, argued
Marshall, with his Court chiming in, we can’t have the states laying taxes on the
property or the activities or the bounds or the employees of the federal government
and we can’t have the federal government levying taxes on the states either. For if
we allowed such taxes, one of our governments might insidiously destroy the other.
Even if there isn’t anything about it in the Constitution, such taxes are
unconstitutional. As a matter of principle.
It developed, as it always does, that there were sub-principles. The Court
discovered one to the effect that the federal government, while it could not tax the
“governmental functions” of the state governments, could tax the
“non-governmental functions” of the state governments – which may sound
confusing to a non-lawyer in that it is hard to think of something done by a
government being non-governmental, but which was perfectly clear to the Supreme
Court. Also, while a “direct” tax levied by a state on something connected with the
federal government was all wrong, an “indirect” tax was all right. Now, for some
reason wrung from the metaphysical reaches of Constitutional Law, the Court
considers an inheritance tax an “indirect” tax. Therefore any state can slap on a tax
when a man dies and leaves his federal bonds to his wife. But since an income tax is
a “direct” tax, no state can tax the man – or his wife either – on the income he makes
from those federal bonds. Presumably – going back to the primary principle – such
a tax might destroy the federal government.
The corresponding immunity of state bonds from the federal income tax raises
yet another question. Can you necessarily change the Supreme Court’s notions
about Constitutional Law even by amending the Constitution? Apparently not. For
41