Day: January 19, 2017

“Today a Kindly President . . . Yet Tomorrow Another President.”

On the eve of the inauguration, while teaching Justice Douglas’s concurring opinion in Youngstown, I had a meta experience that is unlikely to ever recur.

We pay a price for our system of checks and balances, for the distribution of power among the three branches of government. It is a price that today may seem exorbitant to many. Today a kindly President uses the seizure power to effect a wage increase and to keep the steel furnaces in production. Yet tomorrow another President might use the same power to prevent a wage increase, to curb trade-unionists, to regiment labor as oppressively as industry thinks it has been regimented by this seizure.

Today and tomorrow.

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Update in U.S. v. Texas: Judge Hanen Extends Stay Until 3/17/17 “Given the Vagaries Involved in a Change of Administration”

On the eve the inauguration, DAPA likely has less than 24 hours left to live. Unlike DACA, which will be somewhat complicated to unravel, DAPA never took effect. With the stroke of a sharpie, President Trump can make good on his promise, and nullify it tomorrow.

In any event, the litigation following the remand from the Supreme Court proceeds. Around 4:30 Texas Standard Time, Judge Hanen issued an order, extending a previously agreed-upon stay from 2/27/17 to 3/17/17 (the order erroneously lists the date as 2016). Why? “This Court questions whether the time requested is adequate given the vagaries involved in a change of administrations.” Ever-green words for the transition: “vagaries.”

I was involved with this case from the outset. Never, would I ever have believed the twists and turns it took: a federal district court issued a nationwide injunction, the Fifth Circuit affirmed, due to Justice Scalia’s passing the Court affirmed that decision 4-4, and President Trump will nullify the order. This path is almost stranger than fiction.

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ConLaw Class 3 – The Separation of Powers

Class 3 – 1/19/17

The Separation of Powers

  • The Executive Power (503 – 509)
  • Youngstown Sheet & Tube (534 – 554)
  • Enumerated Powers (145-146)
  • Opinion of Secretary of State Thomas Jefferson (59 – 61)
  • Opinion of Secretary of the Treasury Alexander Hamilton (61 – 64)
  • Cabinet Battle #1 from Hamilton, an American Musical – Read the lyrics as you listen to the song
  • The Necessary and Proper Clause (100 – 102)
  • M’Culloch v. Maryland (102 – 114)

The lecture notes are here.

This is a postcard of the Youngstown Sheet and Tube Mill.


Here are photographs of the actual steel mill at issue in Youngstown, Ohio.




This is Secretary of Commerce Charles Sawyer, whom Truman ordered to seize the steel mill.


 The lead opinion in Youngstown was authored by Justice Hugo Black.


There were also concurring opinions written by five Justices. This is Justice Felix Frankfurter.


This is Justice William O. Douglas.


This is Justice Robert H. Jackson. Justice Jackson, who would serve as the lead prosecutor at Nuremberg, authored what has been seen as the definitive opinion in Youngstown.


This is Justice Tom C. Clark (a graduate of University of Texas at Austin).


Chief Justice Vinson dissented, joined by Justices Reed and Minton.


You can read Executive Order 10340, Executive Order 10340 – Directing the Secretary of Commerce to Take Possession of and Operate the Plants and Facilities of Certain Steel Companiesm, here:

NOW, THEREFORE, by virtue of the authority vested in me by the Constitution and laws of the United States, and as President of the United States and Commander in Chief of the armed forces of the United States, it is hereby ordered as follows:

1. The Secretary of Commerce is hereby authorized and directed to take possession of all or such of the plants, facilities, and other property of the companies named in the list attached hereto, or any part thereof, as he may deem necessary in the interests of national defense; and to operate or to arrange for the operation thereof and to do all things necessary for, or incidental to, such operation.

2. In carrying out this order the Secretary of Commerce may act through or with the aid of such public or private instrumentalities or persons as he may designate; and all Federal agencies shall cooperate with the Secretary of Commerce to the fullest extent possible in carrying out the purposes of this order.

3. The Secretary of Commerce shall determine and prescribe terms and conditions of employment under which the plants, facilities, and other properties possession of which is taken pursuant to this order shall be operated. The Secretary of Commerce shall recognize the rights of workers to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining, adjustment of grievances, or other mutual aid or protection, provided that such activities do not interfere with the operation of such plants, facilities, and other properties.

4. Except so far as the Secretary of Commerce shall otherwise provide from time to time, the managements of the plants, facilities, and other properties possession of which is taken pursuant to this order shall continue their functions, including the collection and disbursement of funds in the usual and ordinary course of business in the names of their respective companies and by means of any instrumentalities used by such companies.

5. Except so far as the Secretary of Commerce may otherwise direct, existing rights and obligations of such companies shall remain in full force and effect, and there may be made, in due course, payments of dividends on stock, and of principal, interest, sinking funds, and all other distributions upon bonds, debentures, and other obligations, and expenditures may be made for other ordinary corporate or business purposes.

6. Whenever in the judgment of the Secretary of Commerce further possession and operation by him of any plant, facility, or other property is no longer necessary or expedient in the interest of national defense, and the Secretary has reason to believe that effective future operation is assured, he shall return the possession and operation of such plant, facility or other property to the company in possession and control thereof at the time possession was taken under this order.

7. The Secretary of Commerce is authorized to prescribe and issue such regulations and orders not inconsistent herewith as he may deem necessary or desirable for carrying out the purposes of this order; and he may delegate and authorize subdelegation of such of his functions under this order as he may deem desirable.

This was Marshall’s original draft opinion in M’Cullough v. Maryland.


This excellent video from the HBO John Adams Miniseries about the central banks is very well done.

Also, listen carefully to Cabinet Battle #1 from Hamilton, an American Musical – Read the lyrics as you listen to the song



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Prop1 Class 3: Law and Judges

Class 3 – 1/19/17

Law and Judges

  • Pierson v. Post, 18-23
  • Notes, 23-26
  • The Case of the Speluncean Explorers
    • Note: When you come to class, be prepared to identify which Justice you agree with most, and explain why. Also, keep in mind the rulings of the judges from Pierson v. Post when reading this article.

Today will be a slightly different class. We will cover Pierson v. Post, and the Case of the Spelunceuan Explorers. The focus of our class will be law and judges. Though the less will begin around the rule of capture, I hope the discussion eludes that narrow focus, and that we have a foxy talk.

The lecture notes are here.

Pierson v. Post

A few historical notes notes.

First, about the judges. Daniel Tompkins wrote the majority. He went on to serve as Governor of New York and Vice President for James Monroe. And where did Tompkins die? In a neighborhood of Staten Island, now known as Tompkinsville.


The author of the dissent was Brokholst Livingston, who later received a recess appointment to the Supreme Court from President Jefferson. He would be confirmed in 1807, and serve until his death in 1823. Livingston served a a secretary to future Chief Justice of the United States John Jay in Spain from 1779-1782.


Here is a map showing Post’s home in 1800 (courtesy of Professor Angela Fernandez of the University of Toronto).


Here are some drawings of fox hunts:


Here is a video about the controversy of the fox hunt in the UK:

The Case of the Speluncean Explorers

After you read “The case of the Speluncean Explorers,” please vote which Justice you agree with most. 

This is a picture of Lon Fuller, the author of the Case of the Speluncean Explorers.


A lot of authors have tried to write additional version of this article, but they are nowhere near as good as the original.  speluncean

By the way, for you musical fans, the case of Commonwealth v. Valjean is based, of course, on Victor Hugo’s Les Miserables (Les Miz as you may know it). Jean Valjean steals a loaf of bread to feed himself and his starving sister and neice. He is arrested, and spends 19 years as a “slave to the law.” The movie version of this musical was atrocious. The singing made me cringe. If you can ever see it on Broadway, you should. It is a fantastic parable of law, morality, and ethics.

Valjean and Javert sing about the crime in “Look Down” (starts at 2:29)

JAVERT: Now bring me prisoner 24601, Your time is up, And your parole’s begun, You know what that means.

VALJEAN: Yes, it means I’m free.

JAVERT: No! It means you get, Your yellow ticket-of-leave, You are a thief

VALJEAN: I stole a loaf of bread.

JAVERT: You robbed a house.

VALJEAN: I broke a window pane. My sister’s child was close to death, And we were starving.

JAVERT: You will starve again, Unless you learn the meaning of the law.

VALJEAN: I know the meaning of those 19 years, A slave . . .  of the law

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