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No. 132 "Delegation Of Legislative Power To The Executive Under The New Deal: A Study of One Phase of the Administration's Movement Toward a Centralized Government Laying the Foundation for a Potential Dictatorship," August, 1936.
No. 132 "Delegation Of Legislative Power To The Executive Under The New Deal: A Study of One Phase of the Administration's Movement Toward a Centralized Government Laying the Foundation for a Potential Dictatorship," August, 1936. American Liberty League. 400dpi TIFF G4 page images Digital Library Services, University of Kentucky Libraries Lexington, Kentucky Am_Lib_Leag_132 These pages may freely searched and displayed. Permission must be received for subsequent distribution in print or electronically. No. 132 "Delegation Of Legislative Power To The Executive Under The New Deal: A Study of One Phase of the Administration's Movement Toward a Centralized Government Laying the Foundation for a Potential Dictatorship," August, 1936. American Liberty League. American Liberty League. Washington, D.C. 1936. This electronic text file was created by Optical Character Recognition (OCR). No corrections have been made to the OCR-ed text and no editing has been done to the content of the original document. Encoding has been done through an automated process using the recommendations for Level 1 of the TEI in Libraries Guidelines. Digital page images are linked to the text file. JOIN THE AMERICAN LIBERTY LEAGUE The American Liberty League is organized to defend and uphold the Constitution of the United States and to gather and disseminate information that (1) will teach the necessity of respect for the rights of persons and property as fundamental to every successful form of government and (2) will teach the duty of government to encourage and protect individual and group initiative and enterprise, to foster the right to work, earn, save, and acquire property, and to preserve the ownership and lawful use of property when acquired. The League believes in the doctrine expressed by George Washington in his Farewell Address that while the people may amend the Constitution to meet conditions arising in a changing world, there must "be no change by usurpation; for this * * * is the customary weapon by which free governments are destroyed." Since the League is wholly dependent upon the contributions of its members for financial support it hopes that you will become a contributing member. However, if you cannot contribute it will welcome your support as a non-contributing member. ENROLLMENT BLANK American Liberty League National Press Building Washington, D. C. Date........... I desire to be enrolled as a member of the American Liberty League. Signature Name ................................. Street..............................____ Town.................................. County.......................... State. Enclosed find my contribution of $....... to help support the activities of the League. â˜… â˜… delegation of legislative power to the executive under the new deal â˜… â˜… â˜… A Study of One Phase of the Administration's Movement Toward a Centralised Government Laying the Foundation for a Po-tential Dictatorship "In thirty-four months we have built up new instruments of public power" Franklin D. Roosevelt Message to Congress, January 3, 1936 AMERICAN LIBERTY LEAGUE JXational Headquarters NATIONAL PRESS BUILDING WASHINGTON, D. C. (132) Document No. 13a August, 1936 Delegation of Legislative Power to the Executive Under the New Deal you have finished with this pamphlet, please pass it on to some friend or acquaintance who might be interested, calling his attention to the membership blan\ on page 2,4 Normal relationships among the three coordinate branches of the Federal Government have been destroyed under the New Deal. Increased responsibilities of the executive branch, at the expense of the legislative, form one of the distinguishing characteristics of the new pattern of government. It represents a distinct departure from the American form of government prescribed by the Constitution. First excused under a plea of emergency, the extraordinary powers remain in effect, despite campaign assertions that recovery has been accomplished. The executive branch persists in its efforts to dominate the legislative and to appropriate its constitutional prerogatives. While the new regime has given covert encouragement to attacks upon the judicial branch, it has not dared openly to propose a curtailment of its power. Under New Deal laws, however, the lodging of judicial functions in administrative agencies has gone forward at an accelerated pace. Obliteration of the constitutional dividing lines between coordinate branches lays the foundation for a potential dictatorship. The destruction of the checks and balances in the normal division of powers is part of a three-fold movement under the New Deal toward centralized government. The other two phases of this movement, encroachment by the Federal Government upon the rights of the States and infringement upon the liberties guaranteed under the Bill of Rights, are outside the scope of the present document. A survey of New Deal laws shows no evidence of a purpose to relinquish special powers of the executive branch, except where necessary under decisions of the Supreme Court. Some of the so-called emergency laws are of a permanent character. Others, originally for a limited period, have been extended. Only where it has seemed advantageous to give a statutory basis to agencies established or projects initiated by the Executive without specific authority of law, has the administration narrowed voluntarily the scope of its emergency activities. In no instance has a purpose been shown to return to the normal relationship of the executive and legislative branches. In fact, Cabinet members and others associated with the administration frankly advocate, in speeches and writings, an alteration of the scheme of government to increase the authority of the executive branch. Following are significant facts with respect to the increased executive authority under the New Deal: 1. Legislative power far beyond any in the past has been delegated to the executive branch of the Government in more than a dozen important laws, virtually all of which, except as nullified by the Supreme Court, remain in effect. 2. Control of industry, agriculture and the monetary system have been attempted by executive agencies along lines uncharted by statute. 3. Delegation of legislative power to the Ex-eÂ«utive has even invaded fields reserved to the States under the Constitution. 4. The Supreme Court has been emphatic in condemnation of the unrestricted delegation of legislative power in such instances as have reached a final adjudication. 5. More than 1500 Executive orders with the force of law have been issued by the President. 6. As many as 50 new agencies and bureaus have been created by Executive order to meet emergency conditions, and more than half of them are still in active operation although New Deal spokesmen declare the emergency has passed. 7. Legislative and judicial powers as well have been delegated to regulatory agencies created or strengthened by laws enacted on the recommendation of the administration. 8. A huge new payroll, largely exempt from civil service and including many important officials for whom no Senate confirmation is required, has been established by executive authority. 9. Enormous sums, greater than twice the entire annual cost of the Government before the depression, have been available to the President to spend at will for public works and work relief. 10. New projects of an unprecedented character, visionary and impractical, have been entered upon by the Executive without submission to Congress. 11. Shocking wastes of public money have taken place, notably in the Passamaquoddy and Florida Ship Canal projects initiated by the President and finally stopped by Congress. 12. Political considerations have figured in allotments for relief and public works and in the distribution of jobs. 13. Thousands of administrative orders, with the same force of law as Executive orders, have been issued by officials to whom the President has redelegated power. 14. Executive power has been used for experimentation with theories neither sanctioned by Congress nor approved by authorities most competent to pass judgment. Separation of Powers The purpose of a separation of the powers of Government is to prevent the exercise of autocratic authority by any single unit. The framers of the Constitution thus sought to guard against too great a concentration of power. Through a system of checks and balances it was intended that the three branches, the executive, legislative and judicial, each independent and with coordinate separate powers, should restrain excesses of authority by each of the other two branches. Thus the Executive was given the power of appointment of judges and the right to veto acts of Congress. The Congress was authorized to enact the laws to be administered by the executive branch, to control the funds to be expended by executive agencies and to impeach either executive officials or judges. The judiciary had the right to pass on the constitutionality of laws enacted by Congress and upon the legality of administrative acts of the executive branch. It is difficult to draw hard and fast lines between the prerogatives of the separate divisions of Government. Courts have upheld the delegation of legislative power to the executive branch when_ definite limitations are provided. The practice of delegating legislative power has steadily increased. According to a report of a special committee on administrative law of the American Bar Association, published in July, 1936, there were 19 instances of the delegation of legislative power to executive officials in the first volume of the Federal statutes covering a period of about ten years. Now, according to the committee, the Federal statutes show about 1,300 separate instances where the power to write law has been transferred from Congress to the executive branch of the Government. The committee of the American Bar Association summarizes recent findings of the Supreme Court with respect to limitations imposed by the Constitution on the delegation of legislative power as follows: (a) There must be an adequate definition of the subject to which the delegated power is addressed. (b) There must be adequate declaration of a "policy" or "standard" by Congress to guide the exercise of the delegated power. (c) There must be a requirement of a finding by the administrative agency in the exercise of the authority delegated. In general the American system of government requires determination of basic policies by the Congress, a limited amount of administrative discretion being allowed to the executive branch in actions taken under the authority of law. With respect to borderline cases, a delegation of legislative power which is so phrased in the law as to come within the letter of the Constitution may be as repugnant to its spirit as if it were clearly outside the limitations laid down by the courts. A constitutional principle is clearly involved in numerous delegations of legislative power under the New Deal, regardless of whether in particular instances the phrasing of the law conforms with the technical legal requirements. Much of the so-called administrative law is in fact executive law applied without the protection of judicial procedure and restraints. It is significant that all overlapping of the three coordinate branches of the Government under the New Deal invariably results in greater power for the executive at the expense of the legislative or judicial divisions. The record proves this to be a definite trend promoted by the New Deal. New Deal Laws Throughout the New Deal there has been a deliberate purpose to increase the power of the executive branch of the Government. In his inaugural address on March 4,1933, the President said: "It is to be hoped that the normal balance of executive and legislative authority may be wholly adequate to meet the unprecedented task before us. But it may be that an unprecedented demand and need for undelayed action may call for temporary departure from that normal balance of public procedure." In the early days of the administration proposals to vest extraordinary authority in the Executive encountered relatively little opposition, the assumption being that the action was purely of a temporary character for the period of a grave emergency. The various laws contained preambles declaring the existence of an emergency. As time went on, however, it became apparent that the administration desired to make the emergency powers permanent and to accom-6 plish, without submitting the issue to the people through the normal process of amendment of the Constitution, an actual transformation in the system of Government. Following is a summary of the more important laws, enacted during the various years of the New Deal, which give such discretionary power to the executive branch of the Government as to be for all practical purposes legislative and often judicial in character: Enacted in 1933 National Industrial Recovery Act The broad authority vested in the President under this law was the basis for a large part of the lawmaking by Executive order which took place during the first two years of the New Deal. Under authority of Executive orders the NRA alone produced more than 10,000 pages of administrative law in a single year according to an estimate of a committee of the American Bar Association. This does not take account of administrative orders by numerous other agencies created by Executive order under the authority of the same law. The code-making provisions of the law, which made the President a dictator for industry, were declared unconstitutional by the Supreme Court in May, 1935. At the time the decision was given leading spokesmen for the administration were advocating permanent legislation. The law also created a public works fund from which the President has made allotments for all sorts of purposes. Emergency Banking Act Under a section of this law giving broad power to the President during time of war "or during any other period of national emergency declared by the President" the President took the United States off the gold standard without even a discussion of the question in Congress. Although known as an "emergency" law, most of its provisions, including the one under which the President has approved the entry of the Government into the banking business through the purchase of preferred stock of banks, have no time limitation. Agricultural Adjustment Act Under this act broad authority was delegated to the Secretary of Agriculture until such time as the President should proclaim the end of the emergency. The Secretary of Agriculture has issued many administrative orders with the force of law. Sections of the law relating to agricultural benefits and processing taxes were declared unconstitutional in January, 1936. Other sections are apparently to be allowed by the President to remain in effect indefinitely, regardless of whether an emergency exists and in spite of unfavorable rulings as to their constitutionality in lower courts. Federal Emergency Relief Act The President was given control over relief policies under this act which created a Federal Emergency Relief Administration. The original act was for a two-year period and subsequently was extended to June 30,1936, by which time relief activities had been shifted to the Works Progress Administration and other agencies created by the President under the Work Relief Act. Unemployment Relief Act Under this act providing for the civilian conservation camps, powers were vested in the President rather than in an administrative organization. The original law was for a two-year period and was extended by the Work Relief Act to March 31, 1937. The President, in his last budget message, announced that the civilian conservation camps would thereafter be regarded as a "regular" instead of an emergency activity. Thomas Inflation Amendment This law, forming Title III of the Agricultural Adjustment Act, gave the President broad discretion in the monetary field. The President used the authority as the basis of an Executive order for the purchase of domestic newly-mined silver in pursuance of an international agreement which it had been supposed would require special action by Congress. As originally enacted in a form approved by the President, the main sections of the law were not limited as to time. Most of its provisions are still in effect, subject to limitations in the Gold Reserve Act. Enacted in 1934 Gold Reserve Act Under this act the President, with a three-year limitation inserted upon the insistence of Senator Carter Glass of Virginia, was given authority to change the gold content of the dollar and to control the use by the Secretary of the Treasury of a $2,000,000,000 stabilization fund. Other parts of the law are of a permanent character. The President used his authority to try out the Warren gold theory which, according to subsequent White House admissions, proved fallacious, just as most economists predicted would be the case. The three-year period to which adjustment of the gold content of the dollar and use of the stabilization fund are limited will expire on January 30,1937. In view of the President's advocacy of a managed currency it would seem probable that, if reelected, he will seek permanent discretionary power. Silver Purchase Act Further authority to affect economic conditions through monetary manipulation was given the President and the Secretary of the Treasury in this law authorizing the purchase of an indefinite quantity of silver at prices subject to their control. The delegation of legislative power is not limited to an emergency but is of a permanent character. Reciprocal Tariff Act In this law the President was given authority, without the usual requirement of congressional ratification, to negotiate commercial treaties and change tariff duties under a formula requiring only his opinion that existing rates unduly burden and restrict foreign trade. This unusual delegation of legislative power, the constitutionality of which has been challenged, is limited to a three-year period which expires June 12, 1937. Nothing has been said to show an intention to abandon the program after that date, and it is assumed that if the courts do not interfere, an extension of authority will be sought from Congress in the event of the President's reelection. Labor Relations Boards The President was given authority for a period of one year to appoint a board, or boards, to deal with labor relations in industries which, according to many court decisions, are outside the scope of authority of the Federal Government. A national board and several special industry boards were appointed. Subsequent legislation creating a permanent labor board specified the character of the organization and its functions. Enacted in 1935 Work Relief Act This law gave the President, for a period of two years to July 1, 1937, authority to spend the huge sum of $4,880,000,-000 for almost any conceivable purpose and to create new agencies and add to Government payrolls without limit. The law clearly is an abdication of legislative responsibilities by Congress. After launching activities under this authority the President in the case of various new agencies, including the Rural Electrification Administration, the Commodity Credit Corporation, and numerous public works projects, obtained statutory sanction for continuance. The Work Relief Act has been held by the Court of Appeals of the District of Columbia to be unconstitutional both as an improper delegation of legislative power and an invasion of the reserved rights of the States. Extension of NRA In order to continue in effect various legislative powers exercised by the President other than that of code-making, which was invalidated by the Supreme Court, Congress extended the National Industrial Recovery Act from the expiration of its two-year life to April 1, 1936. The President kept NRA personnel on the payroll at a cost of about $6,500,000 after the date of the Supreme Court decision and also perpetuated numerous other agencies created by Executive order under the law. These agencies subsequently were continued by Executive orders based on the Work Relief Act. The sections of the original law creating a public works fund were extended in the Work Relief Act to June 30, 1937. Enacted in 1936 The New AAA In the Soil Conservation and Domestic Allotment Act, replacing the sections of the Agricultural Adjustment Act declared unconstitutional by the Supreme Court, Congress delegated to the Secretary of Agriculture legislative powers even broader than under the original law. Among other things the Secretary may decide how much of the national income shall be shifted from the urban to the rural population. This is a permanent law and is an illustration of the purpose of the New Deal to continue the dominance of the executive over the legislative branch of the Government. First Deficiency Act of 1936 Additional funds to the amount of $1,425,000,000 were made available to the President for expenditure for any of the purposes authorized under the Work Relief Act. Unquestionably, if the New Deal remains in power, an extension of the Work Relief Act will be sought upon its expiration in 1937. In addition to the above list there are numerous other New Deal laws broadening the range of Federal activity in a manner out of harmony with the American form of government because of encroachment upon States' rights or upon privileges reserved to the people in the Bill of Rights. The list does not include laws creating or strengthening regulatory agencies to which some legislative power is delegated but under standards and restrictions with a measure of definiteness. Court Decisions The chief decisions of the Supreme Court affecting the delegation of legislative power under New Deal laws and the usurpation of authority by executive agencies have been in the "hot oil" or Panama Company case and the NRA or Schechter case, both relating to provisions of the 10 National Industrial Recovery Act, and in the Jones case relating to the exercise of authority under the Securities Act. The "hot oil" case was based on Section 9(c) of the National Industrial Recovery Act which authorized the President to prohibit the transportation in interstate commerce of petroleum and its products in excess of amounts fixed by State laws. In its decision in the "hot oil" case the Supreme Court, on January 7, 1935, said: "If section 9(c) were held valid, it would be idle to pretend that anything would be left of limitations upon the power of the Congress to delegate its law-making function. The reasoning of the many decisions we have reviewed would be made vacuous and their distinctions nugatory. Instead of performing its law-making function the Congress could at will and as to such subjects as it chooses transfer that function to the President or other officer or to an administrative body. The question is not of the intrinsic importance of the particular statute before us, but of the constitutional processes of legislation which are an essential part of our system of government." In the NRA case the Supreme Court, on May 27, 1935, after quoting clauses in the Constitution relating to legislative power, said: "The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested. We have repeatedly recognized the necessity of adapting legislation to complex conditions involving a host of details with which the national legislature cannot deal directly. We pointed out in the Panama Company case that the Constitution has never been regarded as denying to Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply. But we said that the constant recognition of the necessity and validity of such provisions, and the wide range of administrative authority which has been developed by means of them, cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained." The decision of the Supreme Court, in the case of J. Edward Jones vs. Securities and Exchange Commission, rendered April 6, 1936, is pertinent on the question of the usurpation of authority by an executive agency. The case had to do with the production and inspection of private papers. An administrative action was held in violation of individual rights guaranteed by the Constitution. The Court said: "The action of the commission finds no support in right principle or in law. It is wholly unreason-11 able and arbitrary. It violates the cardinal precept upon which the constitutional safeguards of personal liberty ultimately rest that this shall be a government of laws , because to the precise extent that the mere will of an official or an official body is permitted to take the place of allowable official discretion or to supplant the standing law as a rule of human conduct, the government ceases to be one of laws and becomes an autocracy. Against the threat of such a contingency the courts have always been vigilant, and, if they are to perform their constitutional duties in the future, must never cease to be vigilant, to detect and turn aside the danger at its beginning. ... "Arbitrary power and the rule of the Constitution cannot both exist. They are antagonistic and incompatible forces; and one or the other must of necessity perish whenever they are brought into conflict. In the AAA case the United States Circuit Court of Appeals at Boston held that the authority vested in the Secretary of Agriculture to impose processing taxes was an unconstitutional delegation of legislative power. The Supreme Court did not go into the question, basing its adverse decision on the invasion of the reserved rights of the States. Congress in both the Agricultural Adjustment Act and the National Industrial Recovery Act, as well as in other laws, delegated legislative power to the executive branch in fields reserved to the States in the Constitution. Executive Orders Executive orders with the force of law have been issued during the New Deal to a greater total than during a similar period in any other administration. The total between March, 1933, and July, 1936, exceeds 1,500. Of the 1,500 more than 600 were based on the National Industrial Recovery Act, the bulk of them having to do with codes, while about 60 were predicated on the Work Relief Act. The National Industrial Recovery Act contained a declaration of policy sufficiently broad to imply authorization of almost any proposal designed for the betterment of industrial conditions. The President was authorized to establish such agencies and appoint such officers and employees and fix their compensation as he might find desirable to carry out the policy declared in the act. The President was further authorized to delegate any of his functions and powers to officers and employees appointed by him. Penalties for violations of Executive orders or of rules and regulations issued under them included not only fines up to $500 but jail sentences up to six months. Broad powers were vested in the President not 12 only in Title I of the National Industrial Recovery Act, applying to industry in general, but in Title II, authorizing an initial fund of $3,300,-000,000 for the construction of public works. By allotments from this fund the President, without the specific sanction of Congress, paid administrative expenses of the NRA and many other emergency agencies, besides using a considerable amount of it for other purposes having no relation to public works. The Work Relief Act of 1935 gave broad power to the President to spend $4,880,000,000 "to provide relief, work relief and to increase employment by providing for useful projects." The types of projects for which money might be used were specified only in the most general way. The President was authorized to create agencies, appoint without regard to the civil service laws an unlimited number of officers and employees and fix their compensation. Violations of regulations issued under his authority were madp punishable by fines of not to exceed $1,000. New Agencies Created The creation in peace time of new Government agencies other than by specific action of Congress was regarded, prior to the New Deal, as highly irregular. Various temporary agencies were evolved during the World War under general authority vested in the President and liquidated afterwards. Following the War, when new agencies were proposed, Congress insisted upon prescribing the form of organization, limiting their functions and personnel and fixing salaries. Under the New Deal the emergency agencies have dwarfed the regular departments of the Government. About 50 independent agencies and branches of existing agencies and departments have been created by Executive order during the Roosevelt administration. Some, which originally were created by Executive order, have been given a permanent status by statute. Some have been merged with other agencies and some abolished. More than 30 agencies independent of cabinet departments, created in one way or another under the New Deal, remain in existence. Some of the new agencies were created by Executive order even though special laws on the subjects in question were enacted by Congress. Thus, the National Recovery Administration was a creature of the Executive, the National Industrial Recovery Act vesting in the President entire authority with respect to the form of 13 organization. The original NRA was supplanted by a board when the President thought more efficient administration might be obtained thereby. The same law authorized the President to create a Federal Emergency Administration of Public Works. While the law gave an official designation to this agency, it allowed the President to build the organization and to delegate any of his functions and powers under the public works sections of the law to such officers, agents and employees as he might appoint. The statutory authorization for the creation of the Federal Emergency Relief Administration was similar to that for the Public Works Administration. The administrative organization of the Civilian Conservation Corps, based on a special law, was set up by Executive order. The Agricultural Adjustment Administration was created by statute as a branch of the Department of Agriculture but Congress did not dictate the form of organization, the Secretary of Agriculture being given power to appoint officers and employees and, subject to the approval of the President, to issue regulations with the force of law. Under the authority of the National Industrial Recovery Act, the President, by Executive order, created a number of agencies for which no specific suggestion can be found in the law. The same is true to an even greater extent of agencies created under authority of the Work Relief Act. The National Emergency Council, the Central Statistical Board, the office of the Foreign Trade Adviser, the First and Second Export-Import Banks, the Alcohol Control Administration, the National Resources Board and several labor boards were all created originally under the National Industrial Recovery Act. Also created under this act were a number of Delaware corporations with powers far beyond the scope of anything contemplated by the law. The agencies created under the Work Relief Act, without specific authorization in the law, include the Works Progress Administration, the National Youth Administration, the Resettlement Administration, the Rural Electrification Administration and a number of others. Under this law were continued the National Emergency Council and various other agencies for which authority lapsed with the expiration of the National Industrial Recovery Act. Agencies originally created by Executive order and subsequently continued by statutory authority include the Rural Electrification Administration, the Electric Home and Farm Authority, the Central Statistical Board, the Commodity Credit Corporation, the Federal Alcohol Administration and the Export-Import Bank. The statutory National Labor Relations Board is a successor to a board created originally by Executive order. The Farm Credit Administration, which now has a statutory basis, was first established by an Executive order consolidating a number of existing agricultural agencies. Corporations chartered under laws of the State of Delaware, by authority of Executive orders, include the Commodity Credit Corporation, the Electric Home and Farm Authority, the Public Works Emergency Housing Corporation, the Public Works Emergency Leasing Corporation, the Federal Surplus Relief Corporation and the Federal Subsistence Homesteads Corporation. Exposure of the sweeping powers of these corporations, far exoeeding authority which might be exercised directly by the Government, caused the administration in most instances to change the form of organization. The two public works corporations were dissolved. The Commodity Credit Corporation and the Electric Home and Farm Authority were given the specific sanction of law, the latter first having been shifted to a corporation organized under a District of Columbia charter. The Federal Surplus Relief Corporation was changed to the Federal Surplus Commodities Corporation and placed under the AAA, but continues to have very extensive powers. Agencies created under the Work Relief Act will cease to have authority to carry on activities after June 30, 1937, unless provision is made for their continuance. Under a provision of the First Deficiency Appropriation Act of June 22, 1936, which contained a supplemental appropriation of $1,425,000,000 for work relief, amounts allotted by the Budget Director for administrative expenses in connection with the work relief fund shall remain available until June 30, 1938. This apparently means, if the Roosevelt administration remains in power, that it can maintain payrolls of agencies receiving money from the work relief fund even though Congress fails to renew the authority to carry on the various types of projects for which the fund is being used. Statutory Agencies Delegation of legislative power, more or less defined and limited, exists in many of the New Deal laws creating or strengthening permanent regulatory agencies. In the case of most of these agencies there also is a delegation of powers of a judicial or quasi-judicial character. The committee on administrative law of the American Bar Association expressed growing concern of 15 members of the bar over the exercise of quasi-judicial powers by executive agencies. An enormous volume of administrative law has become a major problem of the legal profession in recent years. The tendency of executive agencies to exercise quasi-judicial powers long antedates the present administration, but the movement has been given new impetus under New Deal laws. The laws enacted under the New Deal which define with some degree of definiteness delegated legislative power and also broaden the scope of quasi-judicial activities in the executive branch include the Securities Act, the Securities Exchange Act, the Holding Company Act authorizing an administrative agency to impose a "death sentence" on utility holding companies, the amended Federal Water Power Act, the Labor Relations Act and the Price Discrimination Act conferring new powers upon the Federal Trade Commission. Expanded Payrolls Under the New Deal the total increase of employees in the executive branch of the Government, exclusive of the military services, has been considerably more than 260,000. This is an increase of nearly 50 per cent above the total at the beginning of the administration. The reports of the Civil Service Commission show that nearly 200,000 employees are attached to agencies created under the New Deal or are being paid from emergency funds. More than 60,000 employees have been added to regular departments and boards existing prior to the New Deal. For the most part the payroll expansion has taken place by authority of the President without specific sanction by Congress. Except in cases where Congress insisted upon the application of civil service laws, the personnel of new agencies has been recruited under the spoils system. Political endorsements have been a prerequisite to appointment in nearly all the important emergency agencies. Lump-Sum Appropriations Appropriation of huge funds for expenditure by the President at his discretion is clearly contrary to the intent of the Constitution and constitutes a delegation of legislative authority in violation of the principle of the separation of powers. Clause 7 of Article I, Section IX of the Constitution provides as follows: 16 "No money shall be drawn from the Treasury but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time." Except in war time Congress, prior to the New Deal, made specific appropriations for Government activities. The annual appropriations were available for use by the executive branch of the Government only for purposes definitely authorized by Congress. Seldom were the departments given much latitude. Even in the case of lumpsum appropriations for public buildings and for river and harbor improvement the departments could use the funds only for projects having a statutory authorization. Invariably detailed reports were made to Congress as to the use of funds. Under the New Deal the administration has given no detailed information on the expenditure of emergency funds unless congressional committees have insisted. The AAA supplied information about beneficiaries of agricultural payments only after the Senate demanded it by formal resolution. The lump-sum appropriations granted to the President for public works and work relief in the National Industrial Recovery Act of 1933, the Work Relief Act of 1935 and supplemental acts reach a huge aggregate of more than $10,500,-000,000. Actual experience has shown that restrictions placed upon these funds are so inconsequential as not to interfere with their use for almost any conceivable purpose. Of the original public works fund of $3,300,000,000 less than two-thirds was allotted by the President to projects classed under the heading of "Public Works" in the daily Treasury statement. Of the original $4,880,000,000 work relief fund only about $1,200,000,000 was actually allotted to work relief. Allotments of work relief funds were made for such purposes as administrative expenses of the regular departments, for all sorts of ordinary activities of the departments and for the new types of activities engaged in by such experimental agencies as the Resettlement Administration, the Rural Electrification Administration, and the National Youth Administration. The National Emergency Council, a considerable part of whose work is the dissemination of propaganda for use in the campaign, maintains an extensive payroll from the work relief fund. The public works and work relief funds by no means constitute all the money under the President's control. The daily Treasury statement shows that since the beginning of the depression $19,242,356,000 has been appropriated for "Re-17 covery and Relief." The unexpended balance, the latter part of July, 1936, according to the Treasury, was more than $6,110,000,000. Not only are appropriations on such a basis as to allow the President to spend the money largely as he pleases, but some of the new authorizations for regular departments give an extraordinary degree of latitude. An example is a fund under the control of the Secretary of the Treasury which is ostensibly for expenses in connection with the Emergency Banking, Gold Reserve and Silver Purchase Acts. The annual Treasury appropriation act for the fiscal year 1937 includes a fund of nearly $1,600,000 for this purpose. Previously Congress appropriated $4,500,000 for use in the fiscal years 1935 and 1936. The regular Treasury payroll has been greatly expanded by drawing upon this fund for salaries. The Treasury neither obtained advance authorization for the creation of numerous high-salaried positions nor has it felt under any obligation to report to Congress exactly how the money has been spent. Wasteful Allotments Public attention has been directed to the President's wasteful expenditure of substantial amounts of the taxpayers' money for the Pas-samaquoddy tide-harnessing experiment in Maine and for the Florida Ship Canal. An issue was made of these two projects, with the result that Congress refused to give them a statutory basis and the President felt obliged to withhold further allotted funds. These two projects are typical of many which were initiated by the President on his own responsibility, but unfortunately there was insufficient public interest in most of them to create an issue in Congress. Neither "Quoddy" nor the Florida canal would have had a chance of approval in advance of construction if Congress had exercised its proper legislative function in the first instance. The total cost of the Passamaquoddy project was estimated at about $45,000,000. The amount actually allotted and spent was $7,000,000. The Florida Ship Canal was estimated to cost ultimately about $143,000,000. The amount actually allotted and spent was $5,400,000. The Passamaquoddy project was approved by the President in fulfillment of political promises. Prior to his allotment of funds, engineers of the Federal Power Commission and the Public Works Administration reported that the power to be generated could not compete in price with steam-generated power because of high operating costs, 18 that there was no present or prospective market for the power at any price and" that hydroelectric energy when needed in that area could be created more cheaply on Maine's undeveloped rivers. The Florida Ship Canal, like the Passamaquoddy project, lacked the approval of the Army engineers upon whose judgment Congress, prior to the New Deal, invariably relied. The Public Works Administrator furthermore had disapproved the project and, after a reconsideration had been ordered at the insistence of its sponsors, gave additional adverse findings in reports of its legal and finance divisions. The economic value of the Florida Ship Canal was questioned by experts residing outside the State, and even within the State there was a sharp difference of opinion as to its desirability. The President ignored all these factors in allotting public funds. Even the showing made in Congress as to the wastefulness of the "Quoddy" project failed to restrain him from again pledging his support in talks with Maine voters. Campaign Funds Proper observance of the rule of separation of powers of the Federal Government protects the taxpayers against the use of their money for political purposes. Much evidence has been offered on the floors of Congress and elsewhere that the administration has used work relief funds for partisan purposes. In effect the taxpayers have been assessed for campaign funds of the New Deal. An example is the situation in West Virginia where Senator Rush Holt, a Democrat and administration supporter, after quarreling with other members of his party, told how work relief funds were being used. Senator Holt charged that political considerations were uppermost in the appointment of supervisory officials and that even relief beneficiaries had to show political credentials. The allotment of projects was also dictated by political considerations, according to Senator Holt. Redelegation of Power Congress in the first instance delegates legislative power to the Executive. The second step is a redelegation of legislative power by the President through Executive orders. Next, the officials to whom power is redelegated issue administrative orders with the force of law. The Resettlement Administration offers an example of the process. The President, by Ex-19 ecutive Order No. 7027, created the Resettlement Administration and conferred upon Rex-ford G. Tugwell, Resettlement Administrator, broad power to establish, maintain and operate communities in suburban and rural areas, to initiate and operate projects respecting soil erosion, stream pollution, seacoast erosion, reforestation and flood control, and to finance the purchase of farm land and equipment. Subsequently, by Executive Order No. 7200, the authority was broadened to include blanket power to initiate and administer "other useful projects." Authority also was given to distribute funds for relief in agricultural areas. Under other Executive orders the Subsistence Homesteads Division of the Department of the Interior, the Rural Rehabilitation Division of the Federal Emergency Relief Administration and land policy sections of the Relief Administration and of the Agricultural Adjustment Administration were transferred to the Resettlement Administration. By virtue of the legislative power redelegated to him the Resettlement Administrator has issued at least 200 administrative orders. These orders prescribe conditions governing grants to individuals for rural rehabilitation and relief, set up a policy and procedure with respect to the leasing of farm lands to rural rehabilitation clients and otherwise provide for the management of undertakings for which the President, up to June 30, 1936, had allotted $226,175,000. Of the total allotments $121,648,000 was for rural rehabilitation, $42,350,000 for rural rehabilitation and relief in stricken agricultural areas, $36,450,000 for administrative expenses, $20,776,600 for sanitation and prevention of soil erosion and $4,950,000 for loans and grants in stricken agricultural areas. The authority for the very extensive program of the Resettlement Administration rests on the mere enumeration of general classes of activities in the Work Relief Act. Constitutionality The question of the constitutionality of the Work Relief Act has not as yet been passed upon by the Supreme Court. The United States Court of Appeals for the District of Columbia, however, has_held, in a case involving the Resettlement Administration, that the act is unconstitutional both because of an unwarranted delegation of legislative power and because of an invasion of the reserved rights of the States. The court held that the Resettlement Administration lacked constitutional authority to establish a 20 "model community" at Bound Brook, New Jersey. The court, in a decision rendered on May 18, 1936, said: "It is axiomatic in constitutional law that Congress cannot delegate the law-making power with which it is vested by the Constitution. It may, however, lay down policies and establish standards, leaving to selected instrumentalities the making of subordinate rules within prescribed limits, the filling up of details, and the determination of facts to which the policy as declared by the legislature applies. "Turning now to the Emergency Relief Appropriation Act of 1935, and examining it in the light of the principles laid down in the decision in the Panama and Schechter Cases, it appears that, in so far as this case is concerned, there is a clearly unconstitutional delegation of legislative power. _ "There nowhere appears that adequate definition of the subject called for in the Schechter Case. The money appropriated is made available for classes of projects, among which is one designated merely as 'housing.' "There is nothing in the Act directly prescribing the powers or duties of the President with respect to housing. Assuming that it may be inferred from the Act that the funds are to be used by the President, yet there is nothing requiring their use, either absolutely or in any specified condition or circumstance. He is free to use them or not, as he seesfit. "Assuming, however, that the President is impliedly directed to use these funds, the only criterion or standard to guide him is that the money is to be expended for 'housing projects.' There is no guide as to where or when or how these funds are to be expended for housing. "In pursuance of the authority purported to be conferred, the President, by Executive order, has established a so-called Resettlement Administration not a Housing Administration and by the same order he has prescribed certain functions and duties to be exercised and performed by the Resettlement Administrator. Nowhere in the Act is there a word or a syllable authorizing a policy of resettling destitute or low-income families, or of shifting the populations of States and communities, nor does any authority appear for the organization of a Resettlement Administration for the purpose of establishing model communities. In the whole plan as developed the housing feature appears to be merely incidental and subordinate. "Considering what is here attempted to be accomplished, in the light of the provisions of the Act, we repeat the significant words of Mr. Justice Car-dozo in his concurring opinion in the Schechter Case: 'This is a delegation running riot.'" Economic and Social Theories The New Deal has invoked greater executive power as a method of facilitating experimentation with economic and social theories. It has been impatient over the normal restraints of the 21 legislative process. In instance after instance, while legislation conferring new power was before Congress, it was unwilling to permit light to be thrown upon plans in the making to try out strange ideas. Monetary theories with which the administration experimented proved unsound and contributed to the condition of swollen banking reserves offering dangers against which the authorities recently undertook to guard. Theories underlying the NRA proved fallacious and were retarding recovery at the time the experiment was ended by the Supreme Court. The AAA crop-control scheme, also terminated by the Supreme Court, destroyed foreign markets, opened the way to invasion of domestic markets by foreign producers, increased unemployment in agriculture and in processing and distributing industries and imposed an undue burden on consumers. Experiments under laws relating to relief and public works have resulted in a profligate waste of public funds, political abuses and failure to solve the unemployment problem. Three and one-half years of experimentation at the whim of the Executive have accumulated an appalling record of mistaken policies, futile expenditures, monumental debt and infringement upon individual rights. Unquestionably many of the errors of the New Deal would have been avoided if the legislative branch had been allowed to function as intended under the system of representative democracy. The separation of powers of the Government into three coordinate branches, each with checks and balances against the others, was devised not only as a protection against autocracy but also against misguided enthusiasms of the Executive. an emergency, they have given no mandate for a permanent breaking-down of checks and balances which, if zealously guarded, will make dictatorship impossible. The sweeping delegation of legislative power to the Executive under the New Deal clearly is in conflict with the constitutional system. Emergency or Permanent? Unusual powers were granted to the Executive for the supposed period of an emergency. If the statements of the President, his Cabinet members and other spokesmen for the administration are correct, the emergency no longer exists. Nevertheless, increased executive power remains in force. No evidence is at hand of any intention to relinquish this power in order to return to what the President in his inaugural address called "the normal balance of executive and legislative authority." The issue, therefore squarely raised, concerns a permanent change in a distinctive feature of the American form of government. Whatever the people may have been willing to accept for 22