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Here's the problem.  This week, we covered the period between the inauguration of Franklin Delano Roosevelt (March 4, 1933) and the bombing of Pearl Harbor (December 7, 1941). NOTHING annoyed me especially during the three hours of teaching. Nothing. The first hundred days of FDR's administration have been  held up as a model for every single subsequent president, and none have managed to match his accomplishment. His first term wasn't controversial except for some objections from a conservative Supreme Court and for some critics. In the election of 1936, he carried every single state except Maine and Vermont, giving him a mandate to do some stupid things involving the Supreme Court which amazingly convinced the Court they shouldn't keep rejecting New Deal measures. FDR's foreign policy was hampered by an isolationist Congress, but as Japan annexed Manchuria, as Rome and Berlin supported Francisco Franco in the Spanish Civil War, and as Germany annexed Austria, invaded France and began to bomb England, he was increasingly able to come to the aid of the allies. Yes, Naval intelligence "lost" the Japanese fleet three weeks before Pearl Harbor but there's not enough attached to that to write a full diary. I will, however, show you a picture of FDR and his woozle, Fala.

Not even the establishment of the Congress of Industrial Organizations by John Lewis of the United Mine Workers, David Dubinsky of the International Ladies Garment Workers' Union and Sidney Hillman of Amalgamated, the mens' clothing workers provides me with enough material, even the fact that many of their organizers were members of the Communist Party of the United States (maybe when I tackle labor and nativism in two weeks). But now that I think about it, FDR and the Supreme Court can provide us with lessons about how a president should and should not act when measures that he championed get overturned by a Court which is ideologically opposed to the measures.

So here's a picture of FDR and what SHOULD be the most famous woozle to live in the White House (and what in heaven was Christie Whitman thinking when she gave Dubya a Scottish terrier?)

I'll give you the new memorial to FDR at the end of this. And PLEASE note: Dr. New Deal, no real issues at all (except immigration, and the historical jury is still out on that one, but if you have no problems with the Emancipation proclamation, you can't have a problem with what FDR did or did not do). Dr. Win the War? Next week.

You know about the first hundred days. An Emergency Banking Act. Repeal of Prohibition and amendment of the Volstead Act. The Agricultural Adjustment Act. The Federal Emergency Relief Administration, and the Civil Works Administration to create jobs. The Public Works Administration. The Federal Deposit Insurance Corporation. The Civilian Conservation Corps provided jobs for unemployed young men. The Tennessee Valley Authority, the Farm Credit Act, and the National Industrial Recovery Act. Stuff had to be done quickly (the country was in the fourth year of the Depression) and it was.

By 1935, Roosevelt knew he needed to do more. He and his advisor Harry Hopkins had been seeking revisions in relief policy since the winter of 1933-34. Banking reform had been on the New Deal agenda from the beginning, utilities reform had been among FDR’s highest priorities as governor, and he had endorsed the basic concept of Social Security as early as 1930. The so-called "Second New Deal" was FDR's attempt to build an entirely new framework for American life.

The first part was the Emergency Relief Appropriations Bill of 1935, which he called “the Big Bill,” as it asked for the largest peacetime appropriation to date in American history and contained more spending than the sum of all federal revenues collected in 1934: $4 billion in new funds along with $880 million reallocated from previously authorized appropriations to be used for work relief and public works construction. The bill revived the Civilian Conservation Corps and Public Works Administration, which with this funding would build, among other things,  the Triborough Bridge and La Guardia Airport in New York, the Overseas Highway in the Florida Keys, the San Francisco-Oakland Bay Bridge and the Grand Coulee Dam on the Columbia River in Washington State. It also completed Boulder Dam on the Colorado River (yes, I know it's called Hoover Dam now but I don't have to).

It created new bodies like the Rural Electrification Agency (the major difference between urban America and rural America during this period was electricity, and no electricity meant a smaller audience for his Fireside Chats),

and the National Youth Administration (this provided part time jobs to needy high school and college students to keep them in school and out of the regular labor markets).

The Works Progress Administration was the largest new agency created by the Big Bill, and from the outset it was a magnet for controversy, as it recognized the old principle that “all politics is local.” On the other hand, encouraged by Eleanor Roosevelt and Harry Hopkins, it established projects that gave work to creative people: the Federal Art Project, the Federal Music Project, the Federal Theater Project (its audiences totaled more than 30 million before it was disbanded in 1939 amid charges it spread pro-New Deal propaganda and that it encouraged race mixing in its productions), and the Federal Writers Project.

Second, FDR introduced the Social Security program. The final act provided for unemployment insurance and old age pensions. It authorized nearly $50 million in federal grants to states for immediate relief of indigent elderly, another $25 million for Aid to dependent Children, and modest sums to public health services. The Second New Deal laid the groundwork for the modern American welfare state.

Unfortunately, the Supreme Court wasn't buying it. The press had already begun to refer to four of the judges -- Pierce Butler (appointed by Harding), James McReynolds (Wilson), George Sutherland (Harding) and Willis Van Devanter (Taft) -- as the Four Horsemen [of the Apocalypse] because they voted against everything FDR proposed. As long as there were only for of them, it wasn't a problem, but when Owen Roberts (appointed by Hoover) began to vote with them, and as the Chief Justice, Charles Evans Hughes (also Hoover) joined them, the New Deal seemed to be in danger.

On January 7 1935, the Court ruled on Panama Refining v. Ryan, a challenge to the code for the oil industry, specifically the “hot oil” law, which barred the interstate shipment of petroleum that was produced in excess of quotas set by states, and found that the code violated the doctrine that bars the delegation of legislative powers to administrative officials.

On May 6, 1935, the Supreme Court declared the Railroad Retirement Act of 1934 unconstitutional using language that seemed to threaten old-age insurance provisions of Social Security Bill. Worse, on May 27, a unanimous court ruled, in Schechter Poultry Corp. v. United States, which involved one of the biggest outlets in New York’s kosher poultry business, a $90 million industry, that the Schechters not involved in interstate commerce and that Congress accordingly had no authority to regulate their business. The opinion went on to compare the “virtually unfettered” discretion given the president by the National Industrial Recovery Act to the detailed code of laws in Interstate Commerce Act of 1887, concluding

We think that the code-making authority thus conferred is an unconstitutional delegation of legislative power.
This nullified the National Industrial Recovery Act in terms so sweeping as to endanger virtually all the New Deal legislation as the NRA codes for each industry were at issue.

This didn’t slow FDR. It seemed to galvanize him. On June 4, 1935, he urged Congress to remain in extraordinary session in order to pass four pieces of “must” legislation: in addition to Social Security bill, he wanted a bill to create the National Labor Relations Board(necessary for industrial peace now that the Court had voided the labor provisions of the National Recovery Administration), a bill to break up large public utility holding companies, and a bill to increase power the Federal Reserve System’s Open Market Committee to make it a more effective instrument for controlling the money supply. Once these were enacted, Roosevelt added tax reform: on June 19 he told Congress

Our revenue laws have operated in many ways to the unfair advantage of the few, and they have done little to prevent an unjust concentration of wealth and economic power.
He asked for very high taxes on large incomes, stiffer inheritance taxes, a graduated corporate income tax, and taxes on intercorporate dividends FDR called it a wealth tax, his opponents called it a “soak the rich” bill, and the final law imposed tax of 79% on incomes over $5 million. Who did that affect. John D. Rockefeller, Jr. One person.

And then, in June 1936, as William Leuchtenberg explained in the Smithsonian Magazine in May 2005,

the court, by 5 to 4, struck down a New York state law providing a minimum wage for women and child workers. Laundry owner Joe Tipaldo, said the court, could continue to exploit female workers in his Brooklyn sweatshop; the state was powerless to stop him. “If this decision does not outrage the moral sense of the country,” said Secretary of the Interior Harold Ickes, “then nothing will.” And, indeed, people of all political persuasions were incensed. On its editorial page, the Knickerbocker Press, an upstate New York Republican newspaper, asserted, “The law that would jail any laundryman for having an underfed horse should jail him for having an underfed girl employee.”
The election of 1936 was quite obviously a referendum on Roosevelt and the New Deal. The Republicans couldn't run any of their isolationist senators, so they ran Alf Landon, governor of Kansas, the only incumbent Republican governor to be reelected in 1934, who accepted most of New Deal but found it hostile to business. His eunning mate was Frank Knox, the editor of the Chicago Daily News; incidentally, both London and Knox had supported Theodore Roosevelt's Progressive Party in 1912. Turnout rose by over a third vs. 1932. Here's the electoral map.
This is what you call a mandate. Roosevelt's 523-8 margin was the most lopsided since James Monroe’s 231-1 electoral vote victory over John Quincy Adams in 1820. The electorate also gave FDR significant majorities in the House (331-89) and in the Senate (76-20).

Accordingly, FDR decided to do something about the Court. His first action after reelection was to introduce a "judicial reorganization" bill. In 1914, Woodrow Wilson's attorney general James McReynolds, now one of the Four Horsemen, had suggested adding one additional judge to the lower federal court for any sitting judge who reached the age of 70. Roosevelt’s measure recommended that when a federal judge who had served at least ten years waited more than six months after his 70th birthday to resign or retire, the President might add a new judge to bench: as many as 44 to the lower courts, and as many as six to the Supreme Court (not entirely coincidentally, six of the nine judges on Court were over 70 at time). He presented this as devotion to the principle that aged judges should step down in interests of efficiency. The problem with that was there was no evidence the Supreme Court was clogged with a backload of cases, second, FDR's equation of age with incompetence unnecessarily hurt the Chief Justice, Charles Evans Hughes, still vigorous at 74.

FDR even gave one of his 28 Fireside Chats on this issue, and it shifted opinion to his side although most of the people polled afterward (yes, there were public opinion polls in 1937) favored making the change by way of a constitutional amendment. The Court apparently could read the writing on the walls, as it suddenly decided, in West Coast Hotel v. Parrish, which challenged Washington State’s minimum wage law for women, to uphold the law. This began what’s been called “Constitutional Revolution of 1937.” In subsequent decisions, the Court demonstrated recognition of the reality of the national economic system by sustaining National Labor Relations Act, and by 1941, enough Justices had retired for Roosevelt to have appointed seven New Dealers to the Court. His appointees? Hugo Black, Stanley Reed, Felix Frankfurter (who filled a Jewish seat vacated by Benjamin Cardozo), William O. Douglas, Frank Murphy,
Harlan Fiske Stone, James Byrnes, and Robert H. Jackson. Jackson would preside at the Nuremberg Trials, and Black and Douglas would be among the liberal mainstays of the Warren Court.

Leuchtenberg warns that this should teach presidents not to tamper with the Supreme Court. He's probably right. And here's the memorial.

Originally posted to History for Kossacks on Fri Mar 15, 2013 at 05:15 PM PDT.

Also republished by In Support of Labor and Unions.

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