Monday, June 11, 2012

The Sick Chicken

After Franklin Roosevelt took office in early 1933, he launched numerous programs during his first hundred days in office. These programs - the first wave of the "New Deal" - affected many different aspects of daily life for ordinary citizens, and involved massive increases both in the amount of control which the government exerted over people and in the amount of debt which the federal government was creating. One of the largest of these programs was the National Recovery Administration (NRA), created by the National Industrial Recovery Act (NIRA).

FDR did so much so quickly that it took the public a while to sort out exactly what had happened during those first hundred days (the phrase 'first hundred days' is routinely used in many history textbooks to define the launch of New Deal programs). In fairness, President Roosevelt is not alone to blame for the misery created by the New Deal - he had a willing Congress. The legislation which passed both the House of Representatives and the Senate, the legislation which began the New Deal, would eventually be understood as having prolonged and intensified the Great Depression.

That was certainly not FDR's goal. The purpose of the New Deal was to help America during a severe economic downturn. Yet history so often reminds us about the law of unintended consequences. New Deal programs made things worse, not better. In addition to their harmful economic effects, they also impinged on personal freedoms. As these programs unfolded and developed in the months following "the first hundred days," ordinary people began to feel the tightening grip of many federal regulations on various aspects of their lives - like buying chicken in a grocery store.

Chicken was the topic of a major lawsuit which found its way to the Supreme Court, and which offered a defense of individual liberty in the face of Roosevelt's New Deal regulations. Historian Robert Murphy writes:

Perhaps the most outrageous injustice occurred in the Schechter case, which was appealed to the Supreme Court and led (in 1935) to the overturning of the original National Industrial Recovery Act as unconstitutional. The Schechter brothers were chicken butchers in Brooklyn, and were subject to the NRA's Code of Fair Competition for the Live Poultry Industry of the Metropolitan Area in and about the City of New York.

Historian Amity Shlaes describes the Byzantine maze of NRA regulations governing poultry operations. Even the most compliant butcher would find it difficult to understand, much less conform to, the endless pages of fine print:

Section 2 of article 7 declared that it was prohibited "knowingly to purchase or sell for human consumption culls or other produce that is unfit for that purpose" ... The code prohibited "straight killing," defined it as "killing on the basis of official grade." The rule meant that customers might select a coop or a half coop of chickens for purchase, but they did not "have the right to make any selection of particular birds."

The Schechter brothers were prosecuted for failure to comply with the NRA rules, but the trial quickly settled on the question of whether the NRA rules were constitutional. Robert Murphy describes the facts of the case:

The Schechters were accused (among other code violations) of selling unfit chickens. However, the evidence against them "in the end, was based on the selection of ten chickens, which was then reduced to three suspect chickens, which, upon autopsy by the health authorities, turned out to include only one unhealthy chicken. It was an 'eggbound' chicken [meaning that] eggs, upon its slaughter, were discovered to have lodged inside it, something that would have been hard for the Schechters to detect before sale." This was the only "crime" that related to anything that would strike the average person as actually criminal. Nonetheless, the Schechter brothers were found guilty of violating the NRA code, and fined $7,425 - the equivalent of more than $100,000 at today's prices. One of the brothers received three months in jail, while his other brothers received lighter sentences.

As evidence was presented, and as the Supreme Court justices asked questions, it became difficult for those in the courtroom not to giggle, as "the absurdity of NRA became evident." Justice James Clark McReynolds asked questions to clarify the butcher's terminology of "straight killing" and how the selection of chickens for slaughter and sale was conducted:

McReynolds wanted to probe the meaning of straight killing, and he started with the chickens. "How many are there in a coop?" There were thirty to forty, according to the size of the coops. "Then when the commission man delivers them to the slaughterhouse, they are in coops?" They were in coops. "And if he undertakes to sell them, he must have straight killing?" He must have straight killing, yes. As [Schechter lawyer Joseph] Heller put it: "His customer is not permitted to select the ones he wants. He must put his hand in the coop when he buys from the slaughterhouse and take the first chicken that comes to hand. He has to take that." At this point there was laughter in the court. Then Justice McReynolds asked: "Irrespective of the quality of the chicken?" Irrespective of the quality of the chicken, Heller replied. Later on, Justice Sutherland asked, "Well suppose however that all the chickens have gone over to one end of the coop?" (More laughter.)

It became laughably clear that the NRA was an irrational compilation of rules and regulations attempting to manage specialized industrial processes about which the regulators knew nothing; it became clear that the NRA was an unconstitutional violation of individual liberty; and it became clear that the NRA was harming, not hurting, the economy's attempt to return to normal levels.

When the Supreme Court struck down the NIRA, it would seem a defeat for Roosevelt and his New Deal, and it would seem a victory for personal freedom. However, Roosevelt had another maneuver: his famous attempt at "court packing," although a tactical loss, would prove a strategic victory. When he moved to increase the total number of judges on the Supreme Court, which would allow him to "pack" the bench with judges favorable to his programs, he was again overruled, and the "court packing" plan found to be unconstitutional. But Roosevelt had shown that he would not stop, he would not give up, and he would continue to look for ways to exceed the limits placed on government by the constitution. Robert Murphy continues:

Although the Supreme Court would overturn the absurdity of the NRA, they were not nearly so bold after FDR's attempt to pack the Court with more justices who would see the wisdom of the New Deal. Rather than risk their (waning) sphere of power against the charismatic Roosevelt in an open confrontation, the Supreme Court became more compliant with the New Deal. Roosevelt, for his part, dropped his plan to pack the Court once it stopped throwing out his legislative victories.

Roosevelt's steady efforts at undermining the concept of "limited government" had long-lasting effects: for decades, the notion of what a government could properly regulate, and how a government could invade the personal lives of citizens with its rule, was expanded. Historian John Steele Gordon writes:

The Schechter case and others overturning major aspects of the New Deal led Roosevelt to attempt to "pack" the court with new justices more favorable to his programs. He failed, but in the "switch in time that saved nine," the court began to move to a more expansive view of federal-government power, especially with regard to delegation of powers and interstate commerce. Only in the 1990s did the court once more begin to narrow these powers.

As years went by, Roosevelt continued to bully the judiciary into allowed his New Deal programs. Eventually, as he appointed his own judges, the judicial branch went from allowing New Deal programs to actively fostering government intervention in the private sector. The Supreme Court went from striking down the NRA in 1935 to upholding a similar program in 1942. Historian Mark Levin writes:

The Constitution's interstate commerce clause had as its purpose the promotion of commerce and trade among the states. However, in 1942 the Supreme Court ruled in Wickard v. Filburn that a farmer growing wheat on his own land and for his own use was still subject to federal production limits, even though none of his wheat ever left the state, the Court "reasoned" that by withholding his wheat from commerce, the farmer was affecting interstate commerce, even though there was no commerce, let alone interstate commerce. This meant that private economic activity conducted for the sole purpose of self-consumption and occurring wholly within a state’s borders would now be subject to federal regulatory authority under the Agricultural Adjustment Act. Wickard swept away 150 years of constitutional jurisprudence, decentralized governmental authority, and private property rights protection.

FDR had successfully manipulated and reshaped the judicial branch so that it would conform to his notion that the government should be able to intervene and regulate almost anything and almost everything. Roosevelt's

judiciary seized a role for itself - the manipulation of law to promote a

New Deal agenda. FDR's version of the judicial branch

continues to this day. Indeed, through a succession of laws and rulings, all three branches - the judicial, the legislative, and the executive - now routinely exercise power well beyond their specific, enumerated authority under the Constitution.

Indeed, Roosevelt's massive influence on American politics changed the nature of political discourse. Since FDR's inauguration and the "first hundred days" with its New Deal legislation, a major question in the United States is whether we can ever return to the degree of personal liberty and individual freedom which we enjoyed up until 1933.