The attack on this problem was progressive, with changing features, but the strategy throughout was consistent. The principal forms of rival authority were these four:
The Supreme Court,
Sovereign States, and,
Local Self-Government, for which we may take the symbol to be the County Court House.
The Congress is the law-making power. Under the Constitution, which is the supreme organic law, there is no Federal law-making power but the Congress.
What it represents is the parliamentary principle in free government.
It is the function of the Supreme Court, representing the judicial principle, to interpret the laws when the question is raised whether or not an act of Congress is contrary to the supreme organic law, which is the Constitution, and which only the people can change.
It is the function of the President, representing the executive principle, to execute the laws.
Lastly, each state in the Union has certain sovereign rights; these are rights which in the beginning no state was willing to surrender to the Federal government.
Such is the form of the American government. The idea was that it should be a government of law, not a government of men.
In the special session called by the President to launch the New Deal the Congress for the first time was under the spell of executive leadership and embraced the leadership principle. It did not write the New Deal laws. It received them from the White House, went through the motions of passing them, engrossed them, and sent them back to the President.
That was called the rubber stamp Congress. So long as it was content to keep that role everything was lovely.
In the book On Our Way the President wrote: "In the early hours of June sixteenth, the Congress adjourned. I am happy once more to pay tribute to the members of the Senate and House of Representatives of both parties who so generously and loyally co-operated with me in the solution of our joint problems."
Loyalty of the law-making power to the executive power was one of the dangers the political fathers foretold.
In that special session the Congress had surrendered to the President its one absolute power, namely, control of the public purse; also in creating for the New Deal those new instruments of power demanded by the President it delegated to him a vast amount of lawmaking power—so much in fact that from then on the President and the agencies that were responsible to him made more law than the Congress. The law they made was called administrative law. Each new agency had the authority to issue rules and regulations having the force of law. After that for a long time nobody knew what the law was or where it was, not even the government knew, because the law might be a mimeographed document in the drawer of an administrator's desk. When this confusion became intolerable a rule was made that all pronouncements of administrative law should be printed in a government publication called The Register. That was some improvement, because then if you wanted to know what the law was it was necessary, besides consulting the statute books, only to search the files of The Register.
In the next regular session of Congress the spell began to break, and ever since, with increasing anxiety, it has been running after the power and prestige it surrendered. But the minute it began to do that all the New Deal's power of propaganda was turned against it, in derision, belittlement, and defamation; and in every struggle over principle it was adroitly maneuvered into the position of seeming to stand against the people for wrong reasons, on mere pretense of principle. The attack upon Congress was designed both to undermine the parliamentary principle and to circumscribe the political rights of people.
It is a long story, but well summarized in the report of a special committee of the House of Representatives appointed to investigate un-American activities. It said:
"The effort to obliterate the Congress of the United States as a co-equal and independent branch of our government does not as a rule take the form of a bold and direct assault. We seldom hear a demand that the powers with which Congress is vested by the Constitution be transferred in toto to the executive branch of our government, and that Congress be adjourned in perpetuity. The creeping totalitarianism by which we are menaced proceeds with subtler methods. The senior United States Senator from Wyoming has called attention to the work of men who 'in the guise of criticising individual members of Congress are actually engaged in the effort to undermine the institution itself.' Many of the efforts to purge individual members of Congress are based upon an assumption which reflects discredit upon the entire legislative branch of government. That assumption consists of the view that the sole remaining function of Congress is to ratify by unanimous vote whatever wish is born anywhere at any time in the whole vast structure of the executive branch of Government down to the last whim of any and every administrative official.. .. Over a large part of the world today democracy has been long dead. Political processes which once assured the common man some degree of genuine participation in the decisions of his government have been superseded by a form of rule which we know as the totalitarian state. The essence of totalitarianism is the destruction of the parliamentary or legislative branch of government. The issue simply stated is whether the Congress of the United States shall be the reality or the relic of American democracy."
No one can have forgotten the bitterness of the struggle over the New Deal's attempt to pack the Supreme Court after it had killed the Blue Eagle. Nor can anyone who saw it forget the spectacle of C.I.O. strikers, massed in Cadillac Square, Detroit, intoning with groans the slogan prepared by New Deal propagandists: "Nine old men. Nine old men." That was collaboration. At this point the President suffered his first serious defeat. The Congress would not pass his court-packing law. It did not dare to pass it. Public opinion was too much aroused. Nevertheless, it was possible two years later for the President to boast that he had won.
Vacancies on the bench caused by death and retirement enabled him to fill it up with justices who were New-Deal minded, and so at last he did capture the judicial power.
Reduction of the sovereign power of states was accomplished mainly in four ways, as follows:
One, by imposing Federal features on the social security systems of the states and making the administration of old-age pensions and unemployment insurance a function of the Federal government; Two, by enormous grants in aid out of the Federal Treasury to the states on condition in every case that the states conform to Federal policies, the state governments, under popular pressure to accept Federal funds because they looked like something for nothing, finding it very difficult to refuse; Three, the regional design for great Federal works and the creation of regional authorities like the T.V.A., with only a trivial respect for the political and property rights of the overlaid states, and, Four, by extreme and fantastic extensions of the interstate commerce clause.
The Constitution says that the Congress shall have the power "to regulate commerce with foreign nations, among the several states, and with the Indian tribes."
That is the famous clause. Commerce among the several states is of course interstate commerce. Now, when the New Deal undertook to regulate wages or hours or labor conditions in the nation, it did not write a law saying that such should be the minimum national wage or such the minimum national day's work, nor that the rules of the National Labor Relations Board should govern all employee-employer relations throughout the nation. Not at all. It could hardly say that without first tearing up the Constitution. What it did say was that only such goods as were produced under conditions that conformed to the Federal law—only those and no other—should be permitted to move in interstate commerce. And then the New Deal courts stretched the definition of interstate commerce to the extreme of saying that the Federal government may regulate a wheat farmer who feeds his own wheat to his own chickens, on the ground that if he had not raised his own wheat he would have had to buy wheat for his chickens and buying it would be in the way of interstate commerce; or, that the Federal government may regulate the hours and wages of elevator operators, janitors, and charwomen in a Philadelphia office building because some of the building's tenants are engaged in interstate commerce. On the reduction of local self-government, hear the Governor of Kansas. He was visiting Iowa and made a speech in Des Moines. Twenty years ago, he recalled, the county—for example, the one in Kansas where he began to practice law—offered an almost perfect example of responsible self-government.
"We were able, I believe, to do a reasonably good job of local government. In meeting and solving our problems we looked to the state government very little and to the national government not at all. The citizens of the county knew who their elected officers were.
They came and talked with us frequently. We knew their difficulties. We dealt with them across the desk, over the counter, and sometimes down at the corner drug store. They had definite opinions about the affairs of the county. They spoke their minds freely and they registered their approval and disapproval directly at the polls on the second Tuesday of the next November.
There was no doubt and no uncertainty about it.
"Now, that has been a matter of only about twenty years—a short time indeed in the history of people. But in that twenty years there has taken place a most astonishing change. The court house is the same. The theoretical structure of county government is unaltered. But in practical operation the picture now is very different. Federal agencies are all around us. There is scarcely a problem presented to the county officials of today which is not either directly or indirectly involved with implications and issues related occasionally to state, but more often to Federal, regulation. There are Federal offices in the basement and in the corridors on the second floor. Except during the regular term of court there are extra employees of some Federal agency in the court room. A couple of Federal auditors or investigators are usually using the jury room. The whole warp and woof of local government is enmeshed in the coils of bureaucratic control and regulation.
"And that is only the story so far as county government is concerned. You know that parallels could be drawn in our cities, in our educational districts, and even more clearly in our state capitals. Let me cite just one example. In 1874 the western part of Kansas suffered a very severe calamity in the form of a horde of grasshoppers. Our state was young, only thirteen years old. The ravages of the grasshopper threatened the livelihood of many of the settlers. Upon that occasion the Governor called a special session of the legislature. It met, considered the problem and enacted proper legislation for relief and aid . . . and a disaster was averted.
"If that same situation should occur today we all know what would happen. It would take practically a photo finish to determine which would land first—the grasshoppers or a horde of Federal agents. The state and the county would have absolutely and exactly nothing to say about it. The policy and the means and the method of dealing with the problem would all be determined in Washington, D.C. The benefits, all from the Federal Treasury, in such manner and such form as Washington should dictate, would come to the farmers without their scarcely knowing what it was about— and we take it for granted. The other day a great number of farmers in my state did receive Federal checks, and dozens of them were wondering what in the world they were for, as they knew of no payment that was due under any of the existing programs in which they were participating.”
PROBLEM SEVEN: TO REDUCE ALL FORMS OF AUTHORITY