# United States v. ALA Schechter Poultry Corporation

> Court of Appeals for the Second Circuit · April 1, 1935 · 76 F.2d 617

URL: https://www.frixlaw.com/law-library/cases/9653030

## Case

- **Full name:** UNITED STATES v. A. L. A. SCHECHTER POULTRY CORPORATION Et Al.
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** April 1, 1935
- **Citations:** 76 F.2d 617; 1935 U.S. App. LEXIS 2629
- **Precedential status:** Published
- **Opinion:** Concurrence by Hand
- **Judges:** Manton, Hand, Chase
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9653030

## How later opinions describe it (automated extraction)

- noting that "emergency does not create the power [of Congress to act], but it may furnish the occasion for the exercise of the power conferred by the Constitution”

## Opinion text

L. HAND, Circuit Judge
(concurring).
I am one of the majority who think that counts 46 and 55 should be reversed, and the question at stake has enough importance to justify a statement of- my reasons. It is always a serious thing to declare any act of Congress unconstitutional, and especially in a. case where it is a part of a comprehensive plan for the rehabilitation of the nation as a whole. With the wisdom of that plan we have nothing whatever to do; and were only the Fifth Amendment involved I should be prepared to read the powers of Congress in the broadest possible way. Moreover, the phrase “fair competition” seems to me a definite enough cue or ground plan for the elaboration of. a code. Federal Trade Commission v. R. F. Keppel & Bro., 291 U. S. 304 , 54 S. Ct. 423 , 78 L. Ed. 814 ; Frischer & Co. v. Elting, 60 F.(2d) 711 (C. C. A. 2); Sears, Roebuck & Co. v. Fed. Trade Comm. (C. C. A. 7) 258 F. 307 , 6 A. L. R. 358. Assuming that the preamble of the whole statute will not serve alone (Panama Refining Co. v. Ryan, 293 U. S. 388 , 55 S. Ct. 241 , 79 L. Ed. —), practices generally deemed unfair in any trade may I think be made the basis of a delegated power, which, is obliged to conform to the varying needs of many industries. But the extent of the power'of Congress to regulate interstate commerce is quite another matter and goes to the very root of any federal system at all. It might, or might not, be a good thing if Congress were supreme in all respects, and the states merely political divisions without more autonomy than it chose to accord them; but that is not the skeleton or basic framework of our system. To protect that framework there must be some tribunal which can authoritatively apportion the powers of government, and traditionally this is the .duty of courts. It may indeed follow that the nation cannot aá a unit meet any of the great crise's of its existence except war, and that it must obtain the concurrence of the separate states; but that to some extent at any rate is implicit in any federation, and the resulting weaknesses have not hitherto been thought to outweigh the dangers of a completely centralized government. If the American people have come to believe otherwise, Congress is not the accredited organ to express their will to change.
In an industrial society bound together by means of transport and communication as rapid and certain as ours, it is idle to seek for any transaction, however apparently isolated, which may not have an effect elsewhere; such a society is an elastic medium which transmits all tremors throughout its territory; the only question is of their size. In the case at bar such activities as inspecting the fowls after they have arrived, licensing dealers, and requiring reports, are directed at least in part to the control of their importation, and it is not necessary that they should impinge directly upon the importation itself. So *625 much was certainly decided as to this very industry in Local 167, International Brotherhood, v. U. S., 291 U. S. 293 , 54 S. Ct. 396 , 78 L. Ed. 804 . The “straight killing” rule is of the same kind; it compels a grading of the fowls at shipment and so determines how they shall be cooped and carried. But the regulation of the hours and wages of all local employees, who turn the fowls into merchantable poultry after they have become a part of the domestic stock of goods, seems to me so different in degree as to be beyond the line. No one can indeed deny the prosecution’s argument that hours and wages will in fact influence the import of the fowls into the state; and there are instances in which purely intrastate activities are so enmeshed with interstate that they must be included in interstate regulation, else none at all is possible. That is the case with railway rates. Houston, E. & W. T. R. Co. v. U. S., 234 U. S. 342 , 34 S. Ct. 833 , 58 L. Ed. 1341 ; Railroad Commission of Wisconsin v. Chicago, B. & Q. R. R. Co., 257 U. S. 563 , 42 S. Ct. 232 , 66 L. Ed. 371 , 22 A. L. R. 1086. Lemke v. Farmers’ Grain Co., 258 U. S. 50 , 42 S. Ct. 244 , 66 L. Ed. 458 , was of the same kind. There is no such intimate connection here. Again, the hours and wages of railway workmen may be regulated. Wilson v. New, 243 U. S. 332 , 37 S. Ct. 298 , 61 L. Ed. 755 , L. R. A. 1917E, 938, Ann. Cas. 1918A, 1024; Baltimore & O. R. R. Co. v. Interstate Commerce Commission, 221 U. S. 612 , 31 S. Ct. 621 , 55 L. Ed. 878 . So too the other conditions of their employment. Texas & N. O. R. Co. v. Brotherhood of Railway Clerks, 281 U. S. 548 , 50 S. Ct. 427 , 74 L. Ed. 1034 . But this is limited to those actually conducting transportation, where the connection is as close as possible. The employees of these -defendants were not engaged in transportation. Finally, there are decisions like Stafford v. Wallace, 258 U. S. 495 , 42 S. Ct. 397 , 66 L. Ed. 735 , 23 A. L. R. 229, and Board of Trade of City of Chicago v. Olsen, 262 U. S. 1 , 43 S. Ct. 470 , 67 L. Ed. 839 , of which all that can be said is that the connection between the intrastate transactions regulated and interstate commerce was found to be close enough to serve. It would be, I think, disingenuous to pretend that the ratio decidendi of such decisions is susceptible of statement in general principles. That no doubt might give a show of necessity to the conclusion, but it would be insincere and illusory, and appears formidable only in case the conclusion is surreptitiously introduced during the reasoning. The truth really is that where the border shall be fixed is a question of degree, dependent upon the consequences in each case.
The only ground here for bringing hours and wages within the scope of Congress’ power is because the raw material on which the men work is substantially all imported into the state; they make dressed poultry out of live fowls. If Congress can control the price of their labor, I cannot see why it may not control the rent of the buildings where the fowls are stored, the cost of the feed they eat while here, and of the knives and apparatus by which they are killed and dressed. All these are necessary factors in the product and all have as much and as little effect upon the importation of the fowls to be killed and dressed as the labor, which is indeed little more than half the cost. There comes a time when imported material, like any other goods, loses its interstate character and melts into the domestic stocks of the state which are beyond the powers of Congress. So too there must come a place where the services of those who within the state work it up into a finished product are to be regarded as domestic activities. Industrial Ass’n of San Francisco v. U. S., 268 U. S. 64 , 45 S. Ct. 403 , 69 L. Ed. 849 . Generally the two will coalesce. Work upon material become domestic, can scarcely be other than domestic work; in this it differs from inspection and its ancillary accompaniments. For although inspection is immediately concerned with goods that have arrived, they are ordinarily still in transit; and moreover even were they not, the purpose is directly to control the importation of future goods, like the purpose of the conspiracy in Bedford Cut Stone Co. v. Journeyman Stone Cutters’ Association, 274 U. S. 37 , 47 S. Ct. 522 , 71 L. Ed. 916 , 54 A. L. R. 791. But labor done to work up materials begins only after the transit is completed in law as well as in fact, and it is not directed towards the importation of future materials; it is a part of the general domestic activities of the state and is as immune as they from congressional regulation.
CFIASE, Circuit Judge, concurs in this opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9653030. Public record. Not legal advice.