Selected Papers of Homer Cummings, Attorney General of the United States, 1933-1939

By Carl Brent Swisher; Homer S. Cummings | Go to book overview
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6. Statesmanship and the Law

[The government had twice ceased attempts to have the Supreme Court pass upon the validity of its "slum clearance" program (see United States v. Certain Lands in the City of Louisville, 9 F. Supp. 137, 78 F. (2d) 684, 294 U. S. 735, 296 U. S. 567, 297 U. S. 726). The decisions and the attitude displayed by the Court in the Schechter and other cases cast serious doubts on the constitutionality of the Agricultural Adjustment Act. An amendatory act was passed on August 24, 1935, to cure possible defects on grounds of delegation of legislative power and other points. Injunction suits against collection of the processing tax, which was a basic feature of the act, piled up rapidly until there were some two thousand. In order to prevent the recovery of taxes from the government in the event the act were found unconstitutional, the sponsors of the bill had sought to include provisions adequate to foreclose such recovery unless processors could show that the taxes had not been passed on to consumers or back to producers.

The Agricultural Adjustment Act processing tax case was prepared with great care, but on January 6, 1936, the government went down to defeat by a vote of six to three. Mr. Justice Roberts wrote the opinion of the majority and Mr. Justice Stone wrote a sharp dissent which implied that the majority had resorted to "a tortured construction of the Constitution" (see United States v. Butler, 297 U. S. 1). Thereafter, to prevent unjust self-enrichment of processors in suits recovering taxes paid but not really borne by them, Congress provided for a "windfall" tax at a high rate, the validity of which was later upheld (see Anniston Mfg. Co. v. Davis, 301 U. S. 337).

The government won a narrow victory in the Tennessee Valley Authority case, decided February 17, 1936 (see Ashwander v. T. V. A., 297 U. S. 288). It lost again in the case to test the validity of the Bituminous Coal Conservation Act (see Carter v. Carter Coal Company, 298 U. S. 238), decided May 18, 1936, by a vote of five to four on certain points and six to three on other points. Organizations of lawyers--such as the Lawyers Committee of the Liberty League--attacked the legislative program of the administration with speeches and elaborate, widely distributed legal memoranda. Attorney General Cummings' address on "The Right Arm of Statesmanship" was delivered in this atmosphere of constitutional controversy. Ed.]

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Selected Papers of Homer Cummings, Attorney General of the United States, 1933-1939
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