A. L. A. SCHECHTER POULTRY CORP. v. UNITED STATES
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court
MR. JUSTICE CARDOZO, concurring
The delegated power of legislation which
has found expression in this code is not canalized within banks
that keep it from overflowing. It is unconfined and vagrant,
if I may borrow my own words in an earlier opinion. Panama Refining
Co. v. Ryan, 293 U.S. 388, 440.
This court has held that delegation may
be unlawful though the act to be performed is definite and single,
if the necessity, time and occasion of performance have been left
in the end to the discretion of the delegate. Panama Refining
Co. v. Ryan, supra. I thought that ruling went too far. I pointed
out in an opinion that there had been "no grant to the Executive
of any roving commission to inquire into evils and then, upon
discovering them, do anything he pleases." 293 U.S. at p.
435. Choice, though within limits, had been given him "as
to the occasion, but none whatever as to the means."
Ibid. Here, in the case before us, is an attempted delegation
not confined to any single act nor to any class or group of acts
identified or described by reference to a standard. Here in effect
is a roving commission to inquire into evils and upon discovery
correct them.
I have said that there is no standard,
definite or even approximate, to which legislation must conform.
Let me make my meaning more precise. If codes of fair competition
are codes eliminating "unfair" methods of competition
ascertained upon inquiry to prevail in one industry or another,
there is no unlawful delegation of legislative functions when
the President is directed to inquire into such practices and denounce
them when discovered. For many years a like power has been committed
to the Federal Trade Commission with the approval of this court
in a long series of decisions. Cf. Federal Trade Comm'n v. Keppel
& Bro., 291 U.S. 304, 312; Federal Trade Comm'n v. Raladam
Co., 283 U.S. 643, 648; Federal Trade Comm'n v. Gratz, 253 U.S.
421. Delegation in such circumstances is born of the necessities
of the occasion. The industries of the country are too many
and diverse to make it possible for Congress, in respect
of matters such as these, to legislate directly with adequate
appreciation of varying conditions. Nor is the substance of the
power changed because the President may act at the instance of
trade or industrial associations having special knowledge of the
facts. Their function is strictly advisory; it is the imprimatur
of the President that begets the quality of law. Doty v. Love,
ante, p. 64. When the task that is set before one is that of
cleaning house, it is prudent as well as usual to take counsel
of the dwellers.
But there is another conception of codes
of fair competition, their significance and function, which leads
to very different consequences, though it is one that is struggling
now for recognition and acceptance. By this other conception
a code is not to be restricted to the elimination of business
practices that would be characterized by general acceptation as
oppressive or unfair. It is to include whatever ordinances may
be desirable or helpful for the well-being or prosperity of the
industry affected. In that view, the function of its adoption
is not merely negative, but positive; the planning of improvements
as well as the extirpation of abuses. What is fair, as thus conceived,
is not something to be contrasted with what is unfair or fraudulent
or tricky. The extension becomes as wide as the field of industrial
regulation. If that conception shall prevail, anything that Congress
may do within the limits of the commerce clause for the betterment
of business may be done by the President upon the recommendation
of a trade association by calling it a code. This is delegation
running riot. No such plenitude of power is susceptible of transfer.
The statute, however, aims at nothing less, as one can learn
both from its terms and from the administrative practice under
it. Nothing less is aimed at by the code now submitted to our
scrutiny.
The code does not confine itself to the
suppression of methods of competition that would be classified
as unfair according to accepted business standards or accepted
norms of ethics. It sets up a comprehensive body of rules to
promote the welfare of the industry, if not the welfare of the
nation, without reference to standards, ethical or commercial,
that could be known or predicted in advance of its adoption.
One of the new rules, the source of ten counts in the indictment,
is aimed at an established practice, not unethical or oppressive,
the practice of selective buying. Many others could be instanced
as open to the same objection if the sections of the code were
to be examined one by one. The process of dissection will not
be traced in all its details. Enough at this time to state what
it reveals. Even if the statute itself had fixed the meaning
of fair competition by way of contrast with practices that are
oppressive or unfair, the code outruns the bounds of the authority
conferred. What is excessive is not sporadic or superficial.
It is deep-seated and pervasive. The licit and illicit sections
are so combined and welded as to be incapable of severance without
destructive mutilation.
But there is another objection, far-reaching
and incurable, aside from any defect of unlawful delegation.
If this code had been adopted by Congress
itself, and not by the President on the advice of an industrial
association, it would even then be void unless authority to adopt
it is included in the grant of power "to regulate commerce
with foreign nations and among the several states." United
States Constitution, Art. I, § 8, Clause 3.
I find no authority in that grant for the
regulation of wages and hours of labor in the intrastate transactions
that make up the defendants' business. As to this feature of
the case little can be added to the opinion of the court. There
is a view of causation that would obliterate the distinction between
what is national and what is local in the activities of commerce.
Motion at the outer rim is communicated perceptibly, though minutely,
to recording instruments at the center. A society such as ours
"is an elastic medium which transmits all tremors throughout
its territory; the only question is of their size." Per Learned
Hand, J., in the court below. The law is not indifferent to considerations
of degree. 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. Cf. Chicago
Board of Trade v. Olsen, 262 U.S. 1. There is no penumbra of uncertainty
obscuring judgment here. To find immediacy or directness here
is to find it almost everywhere. If centripetal forces are to
be isolated to the exclusion of the forces that opposed and
counteract them, there will be an end to our federal system.
To take from this code the provisions as
to wages and the hours of labor is to destroy it altogether.
If a trade or an industry is so predominantly local as to be exempt
from regulation by the Congress in respect of matters
such as these, there can be no "code" for it at all.
This is clear from the provisions of § 7a of the Act with
its explicit disclosure of the statutory scheme. Wages and the
hours of labor are essential features of the plan, its very bone
and sinew. There is no opportunity in such circumstances for
the severance of the infected parts in the hope of saving the
remainder. A code collapses utterly with bone and sinew gone.
I am authorized to state that MR. JUSTICE
STONE joins in this opinion.
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