Citizen Rauh: An American Liberal's Life in Law and Politics

4. “Young Whippersnapper”

chapter four “YOUNG WHIPPERSNAPPER” What we need is somebody with a little realism and less idealism. . . . a man of his age, brilliant though he may be, does not have that mature judgment that comes only with age. —congressman albert j. engle of michigan Fair Labor Standards Cardozo’s slow, painful death in 1937–38 mirrored the fate of the New Deal and Roosevelt’s wounded presidency. Except for a few procedural reforms, the Senate killed FDR’s judicial reorganization bill. The House of Representatives held hostage the administration’s proposal for federal wages and hours legislation. In March 1938, the House also gutted the president’s sweeping plan to reorganize the executive branch. And ‹nally, the president’s own decision to reduce federal expenditures for relief and public works, coupled with a hike in interest rates by the Federal Reserve Board, plunged the nation into what critics soon called “the Roosevelt recession.” In terms of unemployment , business failures, and falling prices, the winter of 1937–38 recalled for many Americans the bitter years of 1932–33. FDR fought back and rallied his troops in the spring and summer of 1938 for what proved to be one last burst of domestic reform before events in Europe created other priorities. Lubricated by White House patronage and persuasion, the House ‹nally passed the Fair Labor Standards Act and Roosevelt signed it into law a month before Cardozo died. He nominated Frankfurter to ‹ll Cardozo’s seat on the Court. Joe Rauh soon found himself drafted to advance FDR’s new agenda and two causes that remained central to his legal career. First deployed to implement the new Fair Labor Standards Act, he pursued economic justice for the African-American redcap 43 porters in his hometown of Cincinnati. Later, sent to the struggling Federal Communications Commission (FCC), he waged a guerrilla war on behalf of civil liberties by opposing FDR’s effort to expand federal wiretapping. The ‹rst assignment came from Cohen and Frankfurter soon after FDR signed the FLSA. Rauh’s former professor, Calvert Magruder, general counsel of the newly created Wage and Hour Division, needed good lawyers immediately who could fashion the agency’s rules and regulations and draft bulletins that detailed the scope of the new statute. Rauh seemed a perfect choice because Cohen had given him the job of reviewing several drafts of the FLSA legislation during its long journey through Congress.1 The new law mandated an initial minimum wage of twenty-‹ve cents an hour for workers in interstate commerce, limited hours to forty-four in a week, and banned child labor. It represented Cohen’s ‹nal, monumental contribution to the New Deal. Southern legislators, fearing the loss of their region’s low-wage advantage in industries such as textiles, nearly killed the measure in Congress. It also drew muted opposition from key union leaders such as John L. Lewis of the mine workers, who resented any government intrusion into wage negotiations. Secretary of labor Frances Perkins, a major proponent of the legislation, also chafed over its ‹nal form, which placed implementation in a Wage and Hour Division housed in her department, but under an independent administrator.2 The Ordeal of Enforcement The FLSA’s labored birth, Rauh soon discovered, would be exceeded by the daunting problems of its enforcement. Congressmen had taken exquisite care to exempt large categories of workers from any coverage, especially domestic employees, agricultural workers, and those classi‹ed as executives, administrators, professionals, and outside salespersons, but the precise boundaries of these legislative exemptions remained unclear. When Magruder placed him in charge of drafting Wage and Hour legal opinions, Rauh had to develop quick answers to a long list of thorny questions. Were cannery workers who labored near a farm, for example, “within the area of production” and therefore exempt? What about night watchmen and elevator operators employed by large companies? Were they employees “engaged in commerce” or “in the production of goods for commerce,” as the statute required? Could the statute regulate or abolish “homework,” manufacturing inside a household, which utilized many children between the ages of eight and ten? 44 citizen rauh Did Congress intend to exclude tips from the calculation of the minimum wage? What role should trade associations play in adjusting the wage upward to a forty-cent minimum by 1945? Did the FLSA give federal regulators any jurisdiction over company stores? As Cohen and Frankfurter had hoped...