The Horseracing Case, Part 3: How Carter Coal Is Misunderstood
This is one of a series of posts on the Fifth Circuit’s recent “private nondelegation case”, National Horsemen’s Benevolent & Protective Ass’n v. Black, where it struck down the Horseracing Integrity and Safety Act for delegating power to a private organization, the Horseracing Integrity and Safety Authority. In Monday’s post, I explained how A.L.A. Schechter Poultry Corp. v. United States (1935), the main case that proponents of a “private nondelegation doctrine” usually rely on, gives no support to any view that delegations are judged more harshly if the recipient of the delegation is private instead of public. And in Tuesday’s post, I talked about how the Supreme Court upheld private delegations four times between 1905 and 1939, and cited two of those cases in Schechter Poultry as examples of cases where private delegation was unproblematic; unfortunately it mischaracterized Schechter Poultry a few times in the 1940s as being about private delegation, but fortunately that was dictum.
Today, I’ll talk about the second case that people often rely on when they want to argue that there’s a rule against private delegations: Carter v. Carter Coal Co. (1936). Just like Schechter Poultry, this case has been widely misunderstood: (1) if you read it as an Article I Nondelegation Doctrine case, it doesn’t support any special rule against private delegations; (2) it’s probably best read as a Due Process case (based on the presence of financial bias); (3) if you read it as a Due Process case, it likewise doesn’t support any special rule against private delegations.
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Carter v. Carter Coal Co. involved a challenge to Bituminous Coal Conservation Act of 1935. The Act imposed a 15% tax on coal, but provided that, if a producer accepted the Bituminous Coal Code, he would get a 90% rebate of that tax. And this Code involved, in part, setting minimum and maximum prices of coal, regulation of various methods of competition, collective bargaining, and workers’ wages and hours. The wages and hours were to be determined by negotiation between labor and management:
“Whenever the maximum daily and weekly hours of labor are agreed upon in any contract or contracts negotiated between the producers of more than two-thirds the annual national tonnage production for the preceding calendar year and the representatives of more than one-half of the mine workers employed, such maximum hours of labor shall be accepted by all the code members. The wage agreement or agreements n
Article from Reason.com