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tre to call your attention to two expressions on that sub

I think should receive careful consideration by gentlemen ith such a high sense of obligation as this committee. The ession is by President Taft on March 1, 1913, when he e Webb-Kenyon bill. Therein he stated what he conceived proper attitude of the Executive or the legislator in the fa proposal of dubious constitutionality. I read from his o the Congress :

which the Chief Executive takes, and which each Member of ikes, does not bind him any less sacredly to observe the Consti

the oaths which justices of the Supreme Court take. It is quesether the doubtful constitutionality of a bill ought not to furnish eason for voting against the bill, or vetoing it, than for the court

be invalid. The court will only declare a law invalid where its ality is clear, while the lawmaker may very well hesitate to vote doubtful constitutionality because of the wisdom of keeping clearly undamental law. n of legislators and executives having any legislative function to courts entire and ultimate responsibility as to the constitutionality ires which they take part in passing is an abuse which tends to t constantly in opposition to the legislature and executive, and, e popular supporters of unconstitutional laws. If, however, the ad the executives had attempted to do their duty this burden isapproval would have been lifted from the courts, or at least lessened. [RMAN. Right there are you not down to the proposition ve nine justices of the Supreme Court, and with all due their judicial knowledge and patriotism and their desire American people, if a majority of the 435 Members of d a majority of the 96 Senators think that anything is interests of the country and pass an act and leave it up ne Court to decide its constitutionality, you say that the dy is trying to pass the buck on to the Supreme Court. record showing that the Supreme Court has reversed s. The court is human; times change, and if the Conit some measure is a good one and for the best interests an people, why not pass it, let the Supreme Court say constitutional ? By that process what harm is done to I to the Constitution? Let us see, Mr. Chairman. What is the supreme law Why, it is the Constitution of the United States. cakes an oath to support the Constitution of the United n he takes that oath he takes it to support it not as he it as it has been interpreted by those authorized by n so to do. An act is not held to be invalid because the Congress on questions of policy. The court has t field. The sole power of the court is to determine in agent in exercising delegated powers has exceeded

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lanta, Ga.; Associated Industries of Alabama, Birmingham, Ala.;
Manufacturers' Association of Connecticut (Inc.), Hartford, Conn.;
Southern Cypress Manufacturers' Association, Jacksonville, Fla.;
Illinois Manufacturers' Association, Chicago, Ill.; Rhode Island
Branch of the National Metal Trades Association, Providence,
R. I.; Florida Grapefruit Canners' Association, Tampa, Fla.; and
Florida Lumber & Millwork Association, Ocala, Fla.

The industrial associations which I have the honor to represent are opposed to the measure before the committee on two grounds: First, that it is plainly an invalid proposal, and its legal form, even assuming it is valid, would present an unworkable proposal in legislation; secondly, we oppose it on the grounds of policy, because we believe it can be demonstrated that the bill is one which in its form and practical economic effect would injure rather than help its anticipated beneficiaries.

I want to make clear to the committee that I think all industrialists, at least all for whom I act and speak, have great sympathy with the object which the committee has in mind, which, I believe from the form of the bill, is an equitable distribution of available labor opportunities, to be obtained through prohibiting the introduction in interstate commerce of goods on which persons are required or permitted to work more than 30 hours a week or more than 6 hours a day.

I may say and it will easily be demonstrated by facts that the manufacturing industries have made greater progress in work sharing than any other form of employment, and I think we can conservatively estimate from all information we have at hand that work sharing is at present effective in 70 per cent of the manufacturing industry. Work sharing is not the only method of distributing work, as we shall call to the attention of the committee presently.

With this brief preface may I secondly call the attention of the committee to a phase of the matter that I think deserves your very serious consideration before we enter upon this argument.

It was suggested by the discussion I had the opportunity of hearing only yesterday, it was intimated, that even if this bill is invalid plainly on its face, nevertheless as one case decided by the Supreme Court in reference to this subject was a five-four decision, you could well afford to pass this and let the court reexamine the subject and determine whether or not the dissent had become the opinion of the court. Of course I may in passing say, Mr. Chairman, that if this were a close question in which a single case represented a divided court there might be some basis for that rather remarkable suggestion in view of what I conceive to be the nature of the legislator's obligation as it has been set forth by the most distinguished authority.

But I think we will be able to demonstrate to you that you could exclude the child-labor cases, so called, and then you could not do otherwise than arrive at the conclusion that this bill upon its face is invalid. Certainly to the most sincere and sanguine believer in the policy it may raise doubts so serious on the part of an agent that he should hesitate to exercise his delegated authority.

I venture to call your attention to two expressions on that subject which I think should receive careful consideration by gentlemen imbued with such a high sense of obligation as this committee. The first expression is by President Taft on March 1, 1913, when he vetoed the Webb-Kenyon bill. Therein he stated what he conceived to be the proper attitude of the Executive or the legislator in the present of a proposal of dubious constitutionality. I read from his message to the Congress :

The oath which the Chief Executive takes, and which each Member of Congress takes, does not bind him any less sacredly to observe the Constitution than the oaths which justices of the Supreme Court take. It is questionable whether the doubtful constitutionality of a bill ought not to furnish a greater reason for voting against the bill, or vetoing it, than for the court to hold it to be invalid. The court will only declare a law invalid where its constitutionality is clear, while the lawmaker may very well hesitate to vote for a bill of doubtful constitutionality because of the wisdom of keeping clearly within the fundamental law.

The custom of legislators and executives having any legislative function to remit to the courts entire and ultimate responsibility as to the constitutionality of the measures which they take part in passing is an abuse which tends to put the court constantly in opposition to the legislature and executive, and, indeed, to the popular supporters of unconstitutional laws. If, however, the legislators and the executives had attempted to do their duty this burden of popular disapproval would have been lifted from the courts, or at least considerably lessened.

The CHAIRMAN. Right there are you not down to the proposition that you have nine justices of the Supreme Court, and with all due respect for their judicial knowledge and patriotism and their desire to serve the American people, if a majority of the 435 Members of Congress and a majority of the 96 Senators think that anything is for the best interests of the country and pass an act and leave it up to the Supreme Court to decide its constitutionality, you say that the legislative body is trying to pass the buck on to the Supreme Court. We have a record showing that the Supreme Court has reversed itself 35 times. The court is human; times change, and if the Congress feels that some measure is a good one and for the best interests of the American people, why not pass it, let the Supreme Court say whether it is constitutional ? By that process what harm is done to the people and to the Constitution?

Mr. ÈMERY. Let us see, Mr. Chairman. What is the supreme law of the land? Why, it is the Constitution of the United States. The legislator takes an oath to support the Constitution of the United States and when he takes that oath he takes it to support it not as he interprets it but as it has been interpreted by those authorized by the Constitution so to do. An act is not held to be invalid because it differs with the Congress on questions of policy. The court has no power in that field. The sole power of the court is to determine whether or not an agent in exercising delegated powers has exceeded his authority in the particular matter before him. That question can not be raised in an abstract way. It must come before the court as a juridic question in which some right guarded by the Constitution itself is at issue.

The CHAIRMAN. Nevertheless, in the case in mind we had four justices who were presumed to be just as learned as the other five and the four justices in the 5 to 4 decision decided exactly opposite lanta, Ga.; Associated Industries of Alabama, Birmingham, Ala.; Manufacturers' Association of Connecticut (Inc.), Hartford, Conn.; Southern Cypress Manufacturers' Association, Jacksonville, Fla.; Illinois Manufacturers' Association, Chicago, Ill.; Rhode Island Branch of the National Metal Trades Association, Providence, R. I.; Florida Grapefruit Canners' Association, Tampa, Fla.; and Florida Lumber & Millwork Association, Ocala, Fla.

to the 5.

The industrial associations which I have the honor to represent are opposed to the measure before the committee on two grounds: First, that it is plainly an invalid proposal, and its legal form, even assuming it is valid, would present an unworkable proposal in legislation; secondly, we oppose it on the grounds of policy, because we believe it can be demonstrated that the bill is one which in its form and practical economic effect would injure rather than help its anticipated beneficiaries.

I want to make clear to the committee that I think all industrialists, at least all for whom I act and speak, have great sympathy with the object which the committee has in mind, which, I believe from the form of the bill, is an equitable distribution of available labor opportunities, to be obtained through prohibiting the introduction in interstate commerce of goods on which persons are required or permitted to work more than 30 hours a week or more than 6 hours a day.

I may say and it will easily be demonstrated by facts that the manufacturing industries have made greater progress in work sharing than any other form of employment, and I think we can conservatively estimate from all information we have at hand that work sharing is at present effective in 70 per cent of the manufacturing industry. Work sharing is not the only method of distributing work, as we shall call to the attention of the committee presently.

With this brief preface may I secondly call the attention of the committee to a phase of the matter that I think deserves your very serious consideration before we enter upon this argument.

It was suggested by the discussion I had the opportunity of hearing only yesterday, it was intimated, that even if this bill is invalid plainly on its face, nevertheless as one case decided by the Supreme Court in reference to this subject was a five-four decision, you could well afford to pass this and let the court reexamine the subject and determine whether or not the dissent had become the opinion of the court. Of course I may in passing say, Mr. Chairman, that if this were a close question in which a single case represented a divided court there might be some basis for that rather remarkable sug. gestion in view of what I conceive to be the nature of the legisTator's obligation as it has been set forth by the most distinguished authority.

But I think we will be able to demonstrate to you that you could exclude the child-labor cases, so called, and then you could not do otherwise than arrive at the conclusion that this bill upon its face is invalid. Certainly to the most sincere and sanguine believer in the policy it may raise doubts so serious on the part of an agent that he should hesitate to exercise his delegated authority.

I venture to call your attention to two expressions on that subject which I think should receive careful consideration by gentlemen imbued with such a high sense of obligation as this committee. The first expression is by President Taft on March 1, 1913, when he vetoed the Webb-Kenyon bill. Therein he stated what he conceived to be the proper attitude of the Executive or the legislator in the present of a proposal of dubious constitutionality. I read from his message to the Congress :

The oath which the Chief Executive takes, and which each Member of Congress takes, does not bind him any less sacredly to observe the Constitution than the oaths which justices of the Supreme Court take. It is questionable whether the doubtful constitutionality of a bill ought not to furnish a greater reason for voting against the bill, or vetoing it, than for the court to hold it to be invalid. The court will only declare a law invalid where its constitutionality is clear, wbile the lawmaker may very well hesitate to vote for a bill of doubtful constitutionality because of the wisdom of keeping clearly within the fundamental law.

The custom of legislators and executives having any legislative function to remit to the courts entire and ultimate responsibility as to the constitutionality of the measures which they take part in passing is an abuse which tends to put the court constantly in opposition to the legislature and executive, and, indeed, to the popular supporters of unconstitutional laws. If, however, the legislators and the executives had attempted to do their duty this burden of popular disapproval would have been lifted from the courts, or at least considerably lessened.

The CHAIRMAN. Right there are you not down to the proposition that you have nine justices of the Supreme Court, and with all due respect for their judicial knowledge and patriotism and their desire to serve the American people, if a majority of the 435 Members of Congress and a majority of the 96 Senators think that anything is for the best interests of the country and pass an act and leave it up to the Supreme Court to decide its constitutionality, you say that the legislative body is trying to pass the buck on to the Supreme Court. We have a record showing that the Supreme Court has reversed itself 35 times. The court is human; times change, and if the Congress feels that some measure is a good one and for the best interests of the American people, why not pass it, let the Supreme Court say whether it is constitutional By that process what harm is done to the people and to the Constitution?

Mr. EMERY. Let us see, Mr. Chairman. What is the supreme law of the land? Why, it is the Constitution of the United States. The legislator takes an oath to support the Constitution of the United States and when he takes that oath he takes it to support it not as he interprets it but as it has been interpreted by those authorized by the Constitution so to do. An act is not held to be invalid because it differs with the Congress on questions of policy. The court has no power in that field. The sole power of the court is to determine whether or not an agent in exercising delegated powers has exceeded his authority in the particular matter before him. That question can not be raised in an abstract way. It must come before the court as a juridic question in which some right guarded by the Constitution itself is at issue.

The CHAIRMAN. Nevertheless, in the case in mind we had four justices who were presumed to be just as learned as the other five and the four justices in the 5 to 4 decision decided exactly opposite to the 5.

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