But a majority of Congress had a still different idea as to what was needed. In their view, the Federal Trade Commission was to have positive powers for the enforcement of new legislation designed to supplement the existing law, in addition to the powers of investigation and publicity contemplated by the President. Accordingly, the plans of the industrial leaders were rejected, as apparently was Mr. William Howard Taft's assurance that the courts were quite capable of handling the entire matter under the Sherman Act, and in 1914 Congress enacted the Federal Trade Commission Act," creating a five-man commission with power to prevent "unfair methods of competition in commerce," together with additional powers of investigation and publicity." Also enacted at the same session was the Clayton Act, which gave the Federal Trade Commission the further authority to enforce its provisions against price discrimination, tying clauses, control of competitors through stock acquisitions, and interlocking directorates. Despite dire prognostications as to the unconstitutionality of the F. T. C. Act as an unlawful delegation of legislative and/or judicial power, and as so indefinite as to be void for uncertainty, the Act has not been invalidated in any particular upon constitutional grounds. The lower federal courts have rejected contentions that it violates the separation of powers doctrine, or the due process clause, or that its terms are so vague as to render the delegation of power unlawful. And when the Supreme Court invalidated the legislative delegations in the N. R. A. for want of sufficiently definite standards, both Mr. Chief Justice Hughes for the majority and Mr. Justice Cardozo in his concurring opinion pointed to the F. T. C. Act as a model form of proper delegation. But, while the courts have been most tolerant in proclaiming the lawfulness of the Congressional enactments, and most discerning in detecting the purpose for which they were enacted, a similar judicial attitude has not always greeted the Commission in its attempts to carry out that purpose. That tolerance has been absent and discernment lacking on many a bench before which the Commission appeared will be apparent from the pages to follow.
The Federal Trade Commission and the Courts [Part 1],
17 Wash. L. Rev. & St. B.J.
Available at: https://digitalcommons.law.uw.edu/wlr/vol17/iss1/1