Strategic Retreat

One day last week Stanley Forman Reed was sworn in as Solicitor General of the U. S. Taking that oath cost him $208 a month because he gave up a $12.500 job as general counsel of RFC to take the $10,000 Solicitorship General. But public advancement meant more than money to Mr. Reed, who is the husband of the Registrar General of the Daughters of the American Revolution, and in his own right a country squire and cattle breeder at home in Maysville, Ky. First called to Washington by President Hoover as counsel to the late Farm Board at $25.000 salary, he previously advanced under Democratic rule to the RFC at $12.500. Not so brilliant as some of the New Deal's younger legalites, his tall bulk appealed to tall, bulky Jesse Jones, and his hard work resulted in his being rated among the more competent of the Administration's legal servants.

Becoming Solicitor General put Stanley Reed in the first line of the New Deal's legal defense at a critical moment. The Solicitor General's job is to decide what cases should be appealed to the Supreme Court and to represent the Government in person before that august bench. Solicitor General J. Crawford Biggs re-signed last month after many New Dealers had decided that he was not making the best of the Administration's defense (TIME. March 25). Mr. Reed, taking office, understood well enough that he was expected to do better. But he was hardly settled at his desk last week before he was obliged to announce a strategic retreat.

The retreat was from a ponderous myopic sexagenarian lumberman named William Elbert Belcher. For 29 years Mr. Belcher has been modestly engaged in turning the slash pine of Bibb County, Ala. into merchantable lumber. The retreat was also from one of the most respected and uncompromising septuagenarians of the South, Federal Judge William Irwin Grubb of Birmingham, whose decisions are very rarely reversed by higher courts. Last October, the Government brought Lumberman Belcher to trial before Judge Grubb on charges of paying lower wages and working his men longer hours than NRA's lumber code allowed. Defendant Belcher readily admitted the facts but argued that the Recovery Act as applied to him was unconstitutional for 61 different reasons. Judge Grubb upheld him (TIME, Nov. 12). Government attorneys were delighted; here was a magnificent test case--no argument about facts, simply a question of constitutionality. Appeal was speeded to the Supreme Court. The reason for the Government's haste was explained by Assistant Attorney General Harold M. Stephens.

"It is highly desirable that we get the Supreme Court's opinion on the Recovery Act as soon as possible, for the Act expires next June and its constitutionality should be decided upon soon in order that Congress can determine whether it should make any changes."

The day after Mr. Reed took office the Justice Department announced that it would request the Supreme Court to dismiss its appeal against Mr. Belcher. No secret was made of the reason for this surprising somersault: the Department of Justice did not think a case growing out of the Lumber Code offered the best chance to win a test on NRA's constitutionality. But newshawks were not long in discovering that Government lawyers who had worked on the Belcher case thought it as good a one as was likely to be offered and were eager to proceed, that the decision to dodge it had been made at the White House by President Roosevelt and NIRB Chairman Donald Richberg.

For that decision there was only one plausible reason: the Administration did not want to have NRA's constitutionality tested before Congress wrote a new NRA law. It was reported that Professor Felix Frankfurter had advised his New Deal friends not to test NRA's constitutionality until NRA "had a solid background of achievement." Except for the Belcher case, a Supreme Court decision on NRA is unlikely until next autumn. By that time a new NRA law couched in different terms will probably be in force. It may be two years from now before the new law in turn is finally tested. Thus NRA may be kept going for a long time even if the Supreme Court eventually decides it is wholly illegal.

Although the Administration was actually going backward on NRA, it talked as if it were moving militantly forward. The Press was given copies of letters exchanged between Mr. Richberg and President Roosevelt. The point of the President's letter: "I am particularly requesting the Department of Justice to give every assistance in maintaining compliance with the codes ... to take prompt and vigorous action to prevent or to punish such violations."

If this was meant to frighten businessmen into obeying a doubtful law which the Administration declined to defend, it did not succeed in keeping the lumber industry in line. The Lumber Code Authority discharged most of its office force and made preparations to quit functioning, because "the industry simply has been crucified in an effort to save NRA's future by legislation now pending."

In the Senate, Louisiana's Long chortled at the Administration: "I knew the NRA was unconstitutional and they knew it, but they're trying to keep it alive by bulldozing the little fellow. And this Alabama man who defied every part of it was allowed to tell 'em where to go."

Since only the Supreme Court can dismiss a case, Solicitor General Reed was not quite easy when he put the Government's request. Counsel for the embittered Lumber Code Authority was on hand to oppose Mr. Reed's request. Chief Justice Hughes told him that in the Belcher case he had no standing before the Court. So saying, the Chief Justice followed the Supreme Court's general rule of dismissing cases when requested by the appellant. Angry lumbermen had visions of Mr. Belcher violating the Lumber Code at will while they and other businessmen were threatened with "prompt and vigorous" punishment for every violation.

Meantime the New Deal made efforts to consolidate its new line of defense. A bill extending the life of NRA to June 16, 1937 was hastily introduced in the Senate by Senator Harrison, who explained that it was merely to serve as a basis for discussion, blanks being left for the amount of fines that NRA violators should pay, etc. It would renew Section 7a without change and would not permit restrictions on production except for special exceptions. Chief change in the proposed law, however, was that it offered a mass of new legal verbiage to bring NRA within the scope of the interstate commerce clause of the Constitution and get around the Constitutional objections on which the White House was afraid to go to bat in the Belcher case.

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