May 27: Unconstitutional!

The Supreme Court, including its two Jewish justices, Benjamin Cardozo and Louis Brandeis, determined the National Recovery Act (NRA) to be unconstitutional in A.L.A. Schechter Poultry Corp. v. United States on this date in 1935. The wide-ranging NRA, passed as part of the New Deal in 1933, had authorized President Roosevelt to regulate industry, permit monopolies, establish a national public works program, set codes of conduct, and protect collective bargaining rights for unions, all in the name of stimulating economic recovery. The law was challenged by two kosher poultry businesses in New York that had been convicted for false sales and price reports and for selling a diseased bird; the Court unanimously found that law was too vague about the definition of “fair competition” and, in the words of Chief Justice Charles Evan Hughes, left too much to “the discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country” which was “an unconstitutional delegation of legislative power.” Schechter was a sweeping ruling, but by the time it was handed down, most of the NRA’s work had been done and the law was set to expire. In fact, the NRA program was voluntary for businesses; those who accepted the codes could place the NRA blue eagle symbol in their windows and on their products — but those who did not were generally viewed as unpatriotic and selfish. The Court allowed the Works Progress Administration (WPA) to stand, and it went on to spend billions on public works projects to help end the Great Depression.

“Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power.” —Charles Evans Hughes