Roosevelt had planned to ask for renewal of the National Industrial Recovery Act when it expired in June at the end of its two-year authorization period. Its many codes—there were more than 500, governing industries from steelmaking to pickle packing—were becoming increasingly harder to enforce, and the administration saw a chance to fix its shortcomings and preserve its gains with a new bill. He had said as much in his April 28 fireside chat on the works program: “We must continue to protect children, to enforce minimum wages, to prevent excessive hours, to safeguard, define and enforce collective bargaining, and…'to eliminate, so far as humanly possible, the kinds of unfair practices by selfish minorities which unfortunately did more than anything else to bring about the recent collapse of industries.”
Meanwhile, a number of cases challenging the National Recovery Administration, the enforcer of the current act, had been making their way up the judicial ladder. The codes were a patchwork that varied from industry to industry, but thus far they had withstood scrutiny in all but a few lower court cases. Their underpinnings lay in the commerce clause of the Constitution, which gave Congress the power to regulate interstate commerce. Yet the various permutations of the codes, and the industries they covered, offered different points of attack on their constitutionality.
One case involved a supplier of kosher chickens to New York retail butchers. The A. L. A. Schechter Poultry Corporation, located in Brooklyn, had been convicted of violating the code governing the live poultry industry. The Second Circuit Court of Appeals in New York, while upholding key aspects of the code, struck down the wage and hour provisions on grounds that the employees covered, who slaughtered chickens according to kosher law, were not themselves involved in interstate commerce. The administration appealed to the Supreme Court, and the case was argued early in May.
The court returned its unanimous ruling on Monday, May 27, 1935, and, as Arthur M. Schlesinger Jr. has written, “knocked down with a series of blunt strokes the entire edifice of NRA.”
The court cited the issue of delegation as the reason for its ruling—that the Congress, even in the economic emergency of the depression, lacked the constitutional right to delegate rule-making powers to the executive branch. The ruling gutted NRA’s codes whether or not the companies were involved in interstate commerce. “Extraordinary conditions do not create or enlarge constitutional power,” said the court. The subtext was the court’s opposition to the extension of federal powers that were a key to the New Deal. As Justice Louis Brandeis expressed it as he changed out of his robes in the court cloakroom, “This is an end to this business of centralization.” Schlesinger called it, in a comparison to the Black Tuesday stock market crash that brought on the depression, “the Black Monday of the New Deal.”
NRA codes had set minimum wages and maximum hours, established safe working conditions, and put an end to child labor. Two million businesses across the country displayed the blue eagle that signified voluntary compliance with the codes. Business leaders rejoiced in the court’s ruling, while labor leaders feared the return of sweatshops and child labor. As the administration pondered new laws to protect workers, the New Deal now seemed divisible into two parts. The First New Deal referred to the laws passed during the Hundred Days that struck at the depression by imposing controls on industrial practices and production and on farm output. That New Deal, under attack, was coming to an end, and in its place were rising the initiatives of the Second New Deal. These included the recommendations of the Committee on Economic Security for payroll taxes to fund a system of old-age pensions and unemployment insurance. This plan now had a name—Social Security—and was being debated in the Senate after passing the House. Its companion centerpiece was the WPA.
Ickes and Hopkins continued to feud. Each held to the conviction that his way of running a works program was best. Ickes fretted to his diary that his rival’s domination would mean “thousands of inconsequential make-believe projects in all parts of the country.” Meanwhile Hopkins, in one of his rare diary entries, expressed his impatience with Ickes in language that was typically direct. On May 13, he noted a morning visit to the White House at which he discussed wage rates in the work program with Roosevelt and heard from the president about his weekend poker losses. “He really shouldn’t play poker,” Hopkins wrote. “His game is terrible but he likes it.” Then he wrote, “All day planning the work program, which would be a great deal easier if Ickes would play ball—but he is stubborn and righteous which is a hard combination. He is also the ‘great resigner’—anything doesn’t go his way, threatens to quit. He bores me.”
Hopkins, concerned with speed, pushed to assemble his organization. His top administrators—Aubrey Williams, Corrington Gill, and Jacob Baker—moved with him from FERA, which would now start winding down. Ellen S. Woodward, his choice to head the women’s division, also came from FERA, where she had the same responsibilities and had assembled work programs for teachers, nurses, librarians, and other professional women. Alan Johnstone, Pierce Williams, Howard O. Hunter, and the other FERA regional field representatives also came to the WPA. All of them had done duty with the CWA as well. They “have been with me from the beginning, and they suit me,” said Hopkins. “I cannot hire any better and if they cannot do it, I cannot get any better to do it.” The core staff, though still small by bureaucratic standards, now sprawled well beyond the Walker-Johnson Building and occupied all or parts of nine buildings.
These buzzed with extraordinary levels of activity as the framework of the new agency took shape. Men and women, working in shirtsleeves, sat where they could, at desks doubled up in offices and jammed into hallways amid boxes and filing cabinets. They whipped out memos and reports at such a rate that the papers piled up faster than the messengers scurrying between offices and buildings could move them to the next recipient. Workdays started at eight in the morning and scarcely paused for lunch, whether it was a sandwich and a cup of coffee at the desk or a working session in which some administrative question was discussed, and ran on into the evening. Between eight and ten at night, staffers and administrators would decamp in groups for supper, frequently returning afterward to work some more. Lights blazed at the windows until midnight and beyond. The creak of the elevators was constant; the phones were busy seven days a week. Woodward wrote a friend of the tremendous pressure, which she said seemed “almost as bad as war times.” Everyone took their cues from Hopkins; if he was willing to work such exhausting hours, so were they.
Nor, when he was home, did he get much rest. A friend had given the Hopkinses a cocker spaniel puppy for Diana, but it wasn’t going well: “We have done everything possible to make this new dog of ours a member of the family,” Hopkins wrote the donor, Harold B. Johnson of the National Surety Corporation, “but the veterinarian tells us it cannot be done for a variety of reasons, the principal one of which is we haven’t a house with a yard. He tells me the dog is what is known as a ‘Howler’ and is afraid of the dark, and that it will be impossible to get him adjusted in an apartment.
“I cannot tell you how much I regret this because the dog is a real beauty and Barbara and the baby were much attached to it. Under the circumstances, I think there is nothing to do but send him back.”
Early in June, he summoned his newly appointed state administrators to Washington to let them know what he expected of them. Fourteen were FERA carryovers, whose appointments bypassed the requirement for Senate confirmation since they were already on the government’s payroll. Two others had agreed to take less than $5,000 a year, also to avoid running the gamut of Senate confirmation. But the rest had needed Senate approval, and some of these were political appointees with no relief experience. In such cases, where he could Hopkins had slotted his FERA administrators as WPA state deputies and told them in private that he expected them to run things. And he warned them all, political appointees and professionals, to resist politics in running the state programs. “I have been in this game now for two years,” he said, “and if there is one way not to do it [buy an election], it is by giving relief, because none of the clients like you. They all think you’re terrible, and you are not going to buy any elections that way.”
He instructed them to hire competent people who could do the job and to weed out those who couldn’t. He told them he wanted honesty and the ability to resist political pressure. The program’s main goal, he said, was to put people to work.
Even the politicos had cause to pay attention. McAdoo in California had fought Hopkins to a standstill, but in March Hopkins had faced down Ohio governor Martin Davey over relief patronage. As he had with the recalcitrant Georgian Eugene Talmadge, and in North Dakota when governor William Langer had pressed relief workers for contributions, Hopkins federalized Ohio’s relief operations and appointed his own people, who reported to Washington. And he got a long last laugh in May when Davey, who had sworn out a libel warrant after Hopkins had criticized him at a news conference, dropped the warrant two days before Hopkins visited Cleveland to speak to the Citizens League there.
Components of the new agency continued to fall into place. In late June, Roosevelt created the National Youth Administration as a division of the WPA, placing it in charge of Aubrey Williams. The NYA grew out of concern that, depending on one’s politics, too many unemployed young people were drifting either toward apathy or toward revolution. Williams’s charge was to create part-time jobs for high school and college students, so they could earn money while continuing to study. He took this new job while also continuing in the role of Hopkins’s deputy.
In July, Hopkins turned his attention to white-collar unemployment, with special emphasis upon the arts. But first he faced a personnel decision. Jacob Baker had headed the Division of Professional and Service Projects that employed white-collar workers on relief under CWA and FERA. But as many as 25 percent of working women were the kinds of professionals for whom Ellen Woodward had developed programs under her division. She had been frustrated at finding enough jobs for them, so she lobbied Hopkins to place professional projects under her control. By July, she had convinced him. He gave her the responsibility for creating jobs for clerks, stenographers, researchers, and other white-collar types, and signaled the change by renaming her section the Division of Women’s and Professional Projects. She also controlled arts projects at the state and local level.
The more ambitious of the arts projects, however, would stay under federal control. Baker, though pushed out of professional programs oversight by Woodward, remained in charge of the federal arts initiative, which had not yet been announced but would include programs in art, music, theater, and writing that would be directed out of Washington.
Finally, owing to the large construction component of the program, Hopkins agreed to take on a chief engineer from the Army Corps of Engineers. This was the suggestion of Colonel Lawrence Westbrook, an army reserve officer who advised Hopkins on rural relief and other special problems. Hopkins accepted the notion with reluctance, because he was not sure the army shared the goals of the relief program. But he did recognize that the WPA’s top ranks were filled with people who knew more about human needs than the technical demands of a wide range of heavy and light construction, from road, bridges, and buildings to water and sewer systems, so he allowed Westbrook to recruit Colonel F. C. Harrington to oversee engineering for the agency.