Today in Washington
Sees Supreme Court Opposition To a Permanent New Deal
President Roosevelt's new deal may be justified constitutionally as an "emergency." But any effort to make it "permanent," as advocated by the President in his recent message, will run counter to the Supreme Court of the United States.
This trend of judicial opinion may be inferred from the latest decision of the Supreme Court of the United States in sustaining the Minnesota Mortgage Law.
Nobody knows, of course, what the Supreme Court will say about any future case, as each stands on its own merits and its own set of facts, but official Washington has been waiting for several months for a hint as to how the Supreme Court justices would divide on some of the major questions of constitutional law involved in the new deal.
While the Minnesota case involves the power of a state rather than any federal law, the principles underlying the decision are just the same as if the National Industrial Recovery Act had been under consideration.
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The Minnesota law provided that the state could prevent foreclosures by requiring the holder of the mortgage to accept a fair rental value on interest charge until a specific date in 1934. Had there been no date fixed, the law would have been regarded as a piece of permanent legislation. This may be assumed from the fact that the majority opinion of the Supreme Court made a special point concerning the limited character of the legislation.
But it is significant that the Supreme Court did say that a state could pass a law which frankly impaired a contract and that this is not a violation of the federal constitution, which declares that no state shall make a law impairing the obligations of a contract.
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The significance of the Minnesota decision--and it is probably the forerunner of many of similar import--is that in an emergency much will be-tolerated but that the moment efforts are made to impose on the country a permanent system, the Supreme Court will probably point to the amending power of the constitution itself as the best remedy available to the people or their leaders who may feel that a new social or economic order shall be set up in America.
Perhaps the most far-reaching effect of the Minnesota mortgage case decision will be its effect on real estate finance. If a state can pass a law suspending foreclosures, even for an emergency period, what rank will investors hereafter give real estate in their list of investments, It may be that the existence of a machinery of exchange, the readiness of the federal government to guarantee interest and principal on mortgages to be changed for those on which there has been difficulty in paying the rent or interest, will have an influence in strengthening real estate finance.
But certainly with Minnesota, which probably will be followed by other states, the question of how strong a real estate mortgage is going to be has been raised in an unprecedented fashion. Up to now the lien on property has been considered inviolate and property has had loans placed upon it on the assumption that public sale could bring the investor his original investment or as much of it as was possible to get on the market. Now an entirely new point of view is interjected. And if the states can impair a contract with respect to real estate investments, may they not also do the same with respect to the bonds of industrial corporations, insurance companies and others which have made definite pledges to those from whom they have received money?
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A host of vital questions are opened up the moment an "emergency" is justification for the law of a state permitting contracts to be abrogated. As a matter of fact, it would seem probable that the Supreme Court of the United States will uphold the action of the executive branch of the government and the legislative in repudiating the famous gold clause in government securities. The highest court in Great Britain recently refused to permit an "emergency" to be offered as a reason for falling to pay gold contracts in full