Today in Supreme Court History: May 27, 1935

5/27/1935: Schechter Poultry Corp. v. U.S. decided.

Comments

[Dan Schiavetta]

Schechter Poultry Corp. v. United States, 295 U.S. 495 (decided May 27, 1935) (the "sick chicken case"): invalidated many provisions of National Industrial Recovery Act (as to sale of chickens, and also regulations as to wages, prices) because no Commerce Clause power where effects on interstate commerce were only indirect

San Antonio v. Hotels.com, LP, 593 U.S. --- (decided May 27, 2021): FRAP 39(e), entitled "costs on appeal taxable in the District Court", refers only to the location of the entry of costs and does not allow the District Court to modify the determination of the Circuit Court as to costs on appeal made pursuant to 39(a)

SEC v. W.J. Howey Co., 328 U.S. 293 (decided May 27, 1946): an offering of units in a citrus grove development was an "investment contract" under the Securities Act of 1933 and therefore had to be registered as a security

United States v. Schwimmer, 279 U.S. 644 (decided May 27, 1929): pacifist denied citizenship because during interview she refused to promise to take up arms in defense of the United States (not that, as a female, she would ever be required to!)

Humphrey's Executor v. United States, 295 U.S. 602 (decided May 27, 1935): commissioners with quasi-judicial-legislative (as opposed to executive) functions (like the FTC) can be removed by the President only for the reasons cited in the enabling act (such as "inefficiency, neglect of duty, or malfeasance" -- FTC Act)

Green v. School Board of New Kent County, Va., 391 U.S. 430 (decided May 27, 1968): allowing students to choose the "white school" or the "black school" was in violation of Brown because black students in the previously all-white school were harassed and there was no integration as to 1) faculty, 2) staff, 3) transportation, 4) extracurricular activities or 5) facilities (these five factors were used from then on to evaluate compliance with integration)

Downes v. Bidwell, 182 U.S. 244 (decided May 27, 1901): goods from territories (oranges from Puerto Rico) were "imports" subject to duty charges because Congress can create revenue laws specific to territories (despite art. I, §8 which requires all duties to be uniform throughout the U.S.)

United States v. Causby, 328 U.S. 256 (decided May 27, 1946): disruptive use of airspace over property (Army planes coming off abutting airstrip which panicked and killed farmer's chickens) was a compensable "taking" under the Fifth Amendment. (My grandparents lived across the street from a defense plant runway and the shriek of fighter planes right over the chimney used to scare us; as we got older we got used to it.)

[Dan Schiavetta]

P.S. I once had a deposition where one of the other attorneys was Schechter's grandson (or great-grandson). I forget what we had for lunch (whether he made a point of having chicken or avoided it).

[John F. Carr]

My grandparents lived in the mountains of Colorado, an hour or two from Colorado Springs, and I was surprised by fast-moving low-flying military aircraft.

[Krayt]

I assume the farmer was there first.

[Dan Schiavetta]

The airfield was there since 1928, but only for use of private planes. The farmer bought the property in 1934; it was after the military started flying heavy bombers in 1942 that he squawked (or rather his chickens did).

[Dilan Esper]

That seems a narrow way of characterizing Schechter, which is also a pretty important non-delegation case.

[Dan Schiavetta]

I'm going just by the decision itself, not by what was later made of it.

[Dan Schiavetta]

Or rather --

The two issues were 1) nondelegation and 2) relation to interstate commerce. #1 could be taken care of (and for the most part has been) via changing the legislation and tools like the Administrative Procedure Act. But #2, which I concentrated on, was the broader holding -- even if the nondelegation problem could be fixed, the codes at issue would have been outside the scope of federal power anyway. It was #2 which was not "fixed" but actually overruled, and in short order, by the post-1937 Court.

[Ak Mike]

Respectfully disagree. The nondelegation holding has imposed limitations that have not been overruled on the extent that (a) a corporatist legal structure in which industries self-regulate can be allowed, and (b) executive authority can be exercised without standards and limitations. Nothing like the NIRA has been tried since then, and that is the most important continuing legacy of the Schechter Poultry case. You are right of course that the commerce clause holding has been ditched.

[Ak Mike]

And in fact Schechter Poultry was cited in one of this week's "Short Circuit" cases by the Fifth Circuit, in holding that SEC trials violate nondelegation.

[Dan Schiavetta]

Thanks for directing me to that opinion, Jarkesy v. SEC. It does indeed cite Schechter. (It also cites John Locke!) The court points out that post-Schechter case law requires Congress to give the agency an "intelligible principle" to guide its use of power. It stands to reason that any Constitutional infirmity could have been escaped if Congress had drafted the legislation differently.

[Syd Henderson]

Is Green one of the 100 cases? Schechter's the most important (and probably rightly decided), but Green's pretty important as well.

[Dan Schiavetta]

The main fact about Schechter is that post-1937 decisions in effect overruled it. So I'd say Green is more important for people to know.