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

By Homer S. Cummings; Carl Brent Swisher | Go to book overview

5. Constitutional Stress and Strain

[On May 6, 1935, three weeks before the date of the Schechter decision, the Supreme Court handed down its opinion in Railroad Retirement Board v. Alton ( 295 U. S. 330). The case involved the constitutionality of the Railroad Retirement Act of June 27, 1934, by which a comprehensive retirement scheme for railroad workers was prescribed. The Department of Justice had worked hard to win the case, but in a five to four decision, with Mr. Justice Roberts as spokesman for the majority, the Court held the plan unconstitutional and indicated that any other compulsory method to achieve the same ends would likewise be unconstitutional. Voting with him were the traditional conservatives, Justices Van Devanter, McReynolds, Sutherland, and Butler. Chief Justice Hughes wrote a vigorous dissent, deploring particularly the denial to Congress of the power to pass any form of compulsory pension act for railroad employees.

On May 27, 1935, the date of the Schechter decision, the Court, unanimously though not unexpectedly, invalidated the Frazier-Lemke Farm Bankruptcy Act of June 28, 1934 (see Louisville Joint Stock Land Bank v. Radford, 295 U. S. 555). In Humphrey v. United States ( 295 U. S. 602),on the same day, it denied the power of the President to remove a member of the Federal Trade Commission for other than specified causes, thereby greatly narrowing the doctrine of many years standing enunciated in the p case (see Myers v. United States, 272 U. S. 52). it was in the light of these controversies, involving constitutional interpretations on the part of the Supreme Court which were devastating to the New Deal program, that the Attorney General prepared his address on "The American Constitutional Method." Ed.]


An office memorandum from Assistant Attorney General Stephens, and two letters to the President:

March 15, 1935

I am glad to report that we apparently handled the Retirement case to the satisfaction of Labor. *** I invited the cooperation of Mr. Frank L. Mulholland, counsel to the Association of Railway Labor Executives, representing the standard twenty- one labor railway brotherhoods, and of Mr. Herman L. Ekern, counsel to the Railway Employees National Pension Association,

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