The opinion
Mr. Justice Butler,
dissenting.
Carter v. Carter Coal Co., 298 U. S. 238 , decided that Congress lacks power to regulate terms and conditions of employment of those engaged in local production of commodities sold and about to be shipped in interstate commerce. The circuit court of appeals found two questions for solution. One was whether upon that point the Carter case, in 1936, has been overruled by our decision in 1937 in Labor Board v. Jones & Laughlin, 301 U. S. 1 . The second was whether the power extends to cases where only 39% of goods locally produced are shipped in interstate commerce. The court, one judge dissenting, upheld the order. Each of the judges wrote an opinion; two held this Court has overruled the Carter case.
If the decision of the Carter case upon the point stated stands, the Board’s order cannot be upheld. The lower court made its decision depend upon that question. Save authoritatively to decide it here, there was no reason for granting the writ. But the opinion just announced does not refer to the question.
*470 In the Jones & Laughlin and companion cases, four dissenting Justices thought the Court then departed from well-established principles followed in the Carter case and quoted (p. 96) a passage from it expounding what it meant by “direct” effect on interstate commerce as distinguished from what is “indirect.” And the dissenting opinion insisted (p. 97) that, under the Carter decision, the facts in those cases did not disclose any direct effect upon interstate commerce, and said: “A more remote and indirect interference with interstate commerce or a more definite invasion of the powers reserved to the states is difficult, if not impossible, to imagine.”
But the dissent failed to elicit from the Court any statement as'to whether it meant to overrule the Carter case. The opinion does not discuss that case. It does, however, contain the following (p. 41): “In the Carter case . .. the Court was of the opinion that the provisions of the statute relating to .production were invalid upon several grounds,—that there was improper delegation of legislative power, and that the requirements not only went beyond any sustainable measure of protection of interstate commerce but were also inconsistent with due process. These [meaning the Schechter and Carter] cases are not controlling here.” The later decisions of this Court involving the power of Congress to deal with labor relations in local production do not refer to the Carter case. At least until this Court definitely overrules that decision, it should be followed.
Upon the authority of that case, I would reverse the order of the circuit court of appeals on the ground that, as applied here, the Act is unconstitutional.
Mr. Justice McReynolds concurs in this opinion.