Professor Ross's account of the development of constitutional doctrine under Hughes is for the most part well informed, careful, and judicious. He recognizes that "[r]ather than an instinctive bias in opposition to business regulation, the Court's willingness to second-guess legislatures and administrative agencies may have been a natural response to the constitutional uncertainties created by unprecedented governmental intervention in economic affairs." (312) He appreciates the fact that the Court's decision in Blaisdell did not, as many contemporary liberals hoped and conservatives feared, remove the Contract Clause as a constitutional restraint on state legislative authority. (313) Indeed, the often-overlooked fact that in three decisions rendered in 1935 and 1936 the Court unanimously invalidated statutes under that Clause made its continuing vitality abundantly clear. (314) Moreover, Professor Ross emphasizes that it is important to recognize, as some recent commentators have failed to do, that much of the New Deal presented " 'totally different constitutional problems'" (315) from those presented in Nebbia and Blaisdell, and that decisions invalidating subsequent federal legislation did not involve a retreat from the positions the majority had staked out in those cases.
Indeed, Professor Ross insists that
[t]he actual holdings of the Court's 1935-1936 decisions ... did not wreak as much devastation upon the New Deal as is often supposed. The Court invalidated only 11 of the 2,669 statutes signed by Roosevelt during his first term, albeit all of the statutes that the Court nullified were high-profile laws. (316) Title I of the NIRA, invalidated in A.L.A. Schechter Poultry Corp. v. United States, (317) "already had become a political embarrassment to the administration and ... was facing congressional termination even before the Court invalidated it." (318) The Frazier-Lemke Farm Debt Relief Act "was not actually part of the New Deal, and the Municipal Bankruptcy Act had little practical significance." (319) "Moreover," Professor Ross points out, "several of the statutes, particularly NIRA, suffered from such serious constitutional infirmities that even those justices who were ordinarily the most receptive toward regulatory legislation joined in opinions striking them down." (320) It was "[o]nly invalidation of the statutes regulating agriculture and coal mining and providing pensions to railroad workers [that] seriously impeded recovery and reform efforts, and even these decisions were rendered moot after 1937, when the Court upheld similar statutes that remedied the constitutional infirmities about which the Court had complained." (321) As Professor Ross understands, the Court's decisions in 1935 and 1936 did not erect insuperable obstacles to reform in these areas, but instead channeled congressional efforts into achieving those desired ends through means that were consistent with prevailing constitutional doctrine. (322)
The earliest example of this came with the Court's first decision invalidating a New Deal measure--Panama Refining Co. v. Ryan, (323) which invalidated the NIRA's petroleum code on nondelegation grounds. (324) As Professor Ross reports,
[T]he case humiliated the administration because it graphically illustrated the chaotic administrative methods about which the New Deal's critics had so bitterly complained. During oral argument, Assistant Attorney General Harold M. Stephens revealed that the government had indicted and jailed violators of the ... code for a year before discovering that the code inadvertently lacked a penal section. Under questioning from astonished justices, Stephens also admitted that there was no general publication of executive orders prohibiting the transportation of "hot oil" and that they would be "rather difficult" to obtain. (325) Even Justice Cardozo, who filed a lone dissent from the majority's opinion, "rebuked the administration for its slipshod practices." (326) Later that year, "after the House Judiciary Committee condemned the 'utter chaos' with which administrative rules were promulgated, Congress created the Federal Register for publication of all administrative rules having the force of law." (327) And yet, as Professor Ross observes, this poorly drafted and badly administered measure "could be cured by statute," (328) and indeed, it was. Within six weeks of the Panama Refining decision Congress had replaced the NIRA's Hot Oil regulation with the Connally Act, which the lower federal courts uniformly sustained and the Supreme Court unanimously upheld. (329)
Professor Ross maintains that in Schechter the Court "restrictively interpreted the commerce clause," (330) exhibiting a "cramped vision of commerce." (331) Yet he appears to mean by this only that it appears restrictive or cramped in retrospect, not that it was more restrictive or cramped than it had been previously. For as he recognizes, "the Court's interpretation of the commerce clause in Schechter was not inconsistent with established doctrine." (332) At the time, such an interpretation was thoroughly conventional. Professor Ross also astutely observes that the Court's rejection of the emergency argument in Schechter was not inconsistent with its prior adoption in Blaisdell, because the former concerned the reach of the commerce power while the latter involved the scope of the police power. (333) In fact, Professor Ross notes, "Schechter had little practical impact because NIRA had become such an embarrassment to the Roosevelt administration that Congress probably would not have renewed the statute when its initial term expired during the summer of 1935." (334) The NIRA "tended to discourage competition," and "there was a growing consensus that its maze of bureaucratic regulations was hindering rather than promoting economic recovery." (335) "Moreover, many New Dealers and other advocates of economic regulation of business were uncomfortable with...