Category: Legal Profession

First OLC Opinion of the Trump Administration: Approving Hiring of Jared Kushner in the White House Office

Yesterday, the Office of Legal Counsel published the first new opinion of the Trump Administration, titled Application of the Anti-Nepotism Statute to a Presidential Appointment in the White House Office. It is signed by career lawyer DANIEL L. KOFFSKY, Deputy Assistant Attorney General Office of Legal Counsel. Here is the introduction:

You have asked whether section 3110 of title 5, U.S. Code, which forbids a public official from appointing a relative “to a civilian position in the agency . . . over which [the official] exercises jurisdiction or control,” bars the President from appointing his son-in-law to a position in the White House Office, where the President’s immediate personal staff of advisors serve. We conclude that section 3110 does not bar this appointment because the President’s special hiring authority in 3 U.S.C. § 105(a) exempts positions in the White House Office from section 3110.

A decision of the D.C. Circuit, Haddon v. Walters, 43 F.3d 1488 (D.C. Cir. 1995) (per curiam), lays out a different, but overlapping, route to the same result. According to the reasoning of Haddon, section 3110 does not reach an appointment in the White House Office because section 3110 covers only appointments in an “agency,” which the statute defines to include “Executive agenc[ies],” and the White House Office is not an “Executive agency” within the definition generally applicable to title 5. Although our analysis does not track every element of the D.C. Circuit’s reasoning about the meaning of “Executive agency,” we believe that Haddon arrived at the correct outcome and that our conclusion here—that, because of the President’s special hiring authority for the White House Office, section 3110 does not forbid the proposed appointment—squares with both the holding and a central part of the analysis in that case.

Haddon was a per curiam opinion by Buckley, Ginsburg, and Sentelle. What a panel!

Future OLC Opinions I expect: (1) rationale for firing Richard Cordray, and (2) rationale for halting CSR payments. I would like, but do not expect, an opinion withdrawing the DAPA OLC opinion. It is far easier to simply withdraw the policy, but leave the OLC opinion in place–it may come in handy in the future.

H/T Josh Gerstein

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Undone: With His First Executive Order, President Trump Begins The Repeal of Obamacare


Since it was enacted, President Obama has used all manners of executive power to salvage the Affordable Care Act–at least in the short term. (Many of his exemptions and waivers to the waivers inflicted long-term structural damage to the marketplaces). Now, in his first day of office, President Trump has embarked on using the same species of power to undo Obamacare. Hours after taking the oath of office, President Trump signed an executive order to “minimiz[e] the economic burden of” the ACA.

Section 1 of the Order states that “it is the policy of my Administration to seek the prompt repeal” of the ACA. There is no doubt or walking back this line. Further,

“it is imperative for the executive branch to ensure that the law is being efficiently implemented, take all actions consistent with law to minimize the unwarranted economic and regulatory burdens of the Act, and prepare to afford the States more flexibility and control to create a more free and open healthcare market.

How will this be accomplished? Section 2 states that the Secretary of HHS, and other officials,

“shall exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.”

There is, of course one proviso: HHS can only act here “to the maximum permitted by law.” What is that extent? Under the precedents of the Obama administration, there are no meaningful bounds. Secretary Sebelius deemed it a hardship if anyone had difficulty affording insurance under the ACA, permitting a waiver of the individual mandate. (As Ezra Klein famously put it, “Obamacare itself is the hardship”). Trump’s order follows a similar pattern. If the Obamacare “tax” (thank you John Roberts) imposes a “burden” on individuals, the Secretary now has the authority to defer the mandate.

This discretion is not limited to states. Secretary Sebelius also permitted states to suspend enforcement of “minimum essential coverage,” and allow the sale of non-compliant policies, citing the unfairness of people whose plans would otherwise be cancelled. Thus, if “minimum essential coverage” impose a “fiscal burden on any state,” the Secretary can now suspend it. Using all of the precedents developed by the Obama administration, Trump can now take systematic steps to unravel Obamacare. (Note that I’ve written at length that all of these actions were illegal, and will be illegal).

Perhaps the most important provision is Section 5.

“To the extent that carrying out the directives in this order would require revision of regulations issued through notice-and-comment rule-making, the heads of agencies shall comply with the Administrative Procedure Act and other applicable statues in considering or promulgating such regulatory revisions.”

The order, by itself, takes no action. It merely signals to his administration what his priorities are. But the impact is unmistakeable. The Secretaries of the various departments will take the direction, issue memorandums, rescind memorandums, and rescind rules.

At the moment, the “Executive Order” page of is blank. Expect this page to be filled up as the days go by.

Update: On cue, ardent defenders of President Obama’s executive actions have now discovered the separation of powers:

But this executive action on its own does not unravel the mandate on its own, or any other part of Obamacare for that matter. Instead, it sets up a long, drawn-out process to change the law’s rules — a unwinding process that takes time. And there are still major limits to how much Trump can do before Congress acts.

“Trump is going to have to comply with law, and that doesn’t allow him to repeal the Affordable Care Act unilaterally,” health law expert Tim Jost, a law professor at Washington and Lee College, says.

As the above post notes, the precedents of the administrative fix, and the hardship exemptions, provides a broad basis to suspend “minimum essential coverage” requirements as well as the individual mandate.

Update 2: Nick Bagley reads the EO in much the same way with respect to killing the individual mandate–a step that would be illegal, but entirely consistent with Secretary Sebelius’s decision.

What troubles me most is the instruction to “delay the implementation of” any “tax” on individuals. Back in 2013, the Obama administration delayed the implementation of both the employer mandate and some of the ACA’s insurance rules. The implementation delays were unlawful, as I argued at the time. I warned, too, that they were shortsighted:

A future administration that is less sympathetic to the ACA could invoke the delays as precedent for declining to enforce other provisions that it dislikes, including provisions that are essential to the proper functioning of the law. The delays could therefore undermine the very statute they were meant to protect—and perhaps imperil the ACA’s effort to extend coverage to tens of millions of people.

Delaying the individual mandate is precisely what I feared most. (The E.O.’s instruction to consider delaying implementation of taxes on “makers of medical devices, products, or medications” could also lead to the suspension of the medical device tax and the tax on the pharmaceutical industry. That’d be a sweetheart gift for industry.)

Update 3: Seth Chandler reaches much the same conclusion:

1. “Delay” enforcement of the individual and employer mandates. President Obama, after all, delayed enforcement of the employer mandate for a year for some large employers and delayed enforcement for two years for others. It was, the President asserted, too burdensome to comply with. President Trump might equally assert that, given the poor quality and high prices of ACA policies in many jurisdictions, it is too burdensome to comply with the individual mandate today. And the employer mandate, with its exacting employee-counting rules, remains somewhat burdensome. Moreover, even if there are differences in kind and degree between President Obama’s actions and those taken pursuant to the Trump Executive Order, who would have standing to challenge any lack of enforcement?  It’s all part of the “discretion” on which the Obama administration rested many actions under the ACA and other statutes. And it will take some work for Obama supporters to object to actions by the Trump administration to engage in these “delays” since President Obama did it himself.

2. Expand “hardship exemptions” from the individual mandate so that basically nobody has to pay what many conservatives still regard as an unconstitutional tax. President Obama, after all, without notice and comment created hardship exemptions that had, quite arguably, little to do with actual hardship and a lot to do with politics: the exemption of persons who can afford insurance but who live in a state that dared not to expand Medicaid would be my Exhibit A on this point. And, again, even if granting such a hardship were unlawful, at least without notice and comment rule making, who is going to have standing to challenge the “enforcement priority?” Either delay of the individual mandate or expansion of the hardship exemption would threaten continued participation of insurers selling policies on the individual market.

3. Extend the option of the states to permit insurers to sell insurance policies that do not comply with ACA requirements regarding matters such as “benefit packages” (maternity, contraceptives, pre-existing condition limits, etc). Such sales would make Exchange policies less attractive to many men, younger persons or others who want policies that are cheaper (and often provide less coverage) then those sold on the Exchanges. How could President Trump do this lawfully or without sluggish notice and comment rule making? The same way President Obama did in November of 2013 — by executive order and a regulatory guidance! Remember the firestorm of protest when it was discovered that President Obama had issued the “lie of the year” when he said that if you liked your healthcare plan you could keep your healthcare plan. Period. The “Administrative Fix” explicitly permitted states to let their insurers violate the ACA, an invitation that was accepted by some jurisdictions and rejected by others. Oh, and think that surely a court would overturn such a subversion of the law by decree? Ask West Virginia. Its  case objecting to this apparent abuse of separation of powers was tossed out by the United States Court of Appeals for the District of Columbia. Maybe the Supreme Court will ultimately overturn the Court of Appeals, but, even if so, it will have taken West Virginia more than three years to restore the rule of law.

Tim Jost, on the other hand, now asserts there are limits on what can be a “hardship”:

New categories of hardship exemptions to the individual responsibility requirement may be created, but they will have to qualify as hardships. …

A number of commenters have noted that the Order seems to instruct HHS to liberally grant waivers from the individual responsibility requirement of the ACA. The ACA gives HHS discretion in granting “hardship” waivers and current regulations  authorize HHS to do this through guidance. The Obama administration authorized hardship waivers in a number of circumstances, and one can imagine Trump’s HHS granting hardship exemptions even more broadly, perhaps even through guidance.

But surely the term “hardship” is not meaningless—simply being required to purchase health insurance is not in itself a hardship, because that is what the individual responsibility law requires. Were the Trump administration to effectively repeal the mandate, it would certainly be sued.  Individuals with preexisting conditions left in a market without healthy enrollees would have a strong argument for standing. Also, as the Congressional Budget Office has acknowledged, repealing the individual responsibility requirement could have a devastating effect on the individual insurance market if it is not replaced by another means of encouraging healthy people to enroll. Would the Trump administration want to risk destroying the individual market through executive action? We will see.

Oh but under Secretary Sebelius’s standards, “hardship” is meaningless. From Unraveled:

The legal basis for the hardship fix was sketched out by Professors Nicholas Bagley and Austin Frakt two months earlier, in an article aptly titled “Saving Obamacare without Congress.” 113 First, the professors explained that the law allows for a “hardship exemption” for anyone who has “suffered “suffered a hardship with respect to the capability to obtain coverage under a qualified health plan.” Second, they wrote, Secretary Sebelius can “grant a certification” for particular individuals attesting that “there is no affordable qualified health plan available through the Exchange.” As a result, if these two provisions are put together, the scholars explained, it could be a “hardship” if there was “no affordable qualified health plan available through the Exchange.”

But there is an ironic quality to this reasoning. Congress created several categories of people who would be exempted from the individual mandate’s penalty: “individuals who cannot afford coverage,” “taxpayers with incomes below filing threshold,” “member[ s] of Indian tribes,” and anyone who “suffered a hardship with respect to the capability to obtain coverage under a qualified plan.” 114 Congress set a strict threshold for exemptions from the penalty due to inability to pay: those for whom the annual cost of coverage exceeds 8 percent of household income. 115 These are individuals with extremely low incomes, who would likely qualify for Medicaid.

HHS’s blanket policy of exempting anyone whose insurance was “more expensive” than before, irrespective of annual income, is impossible to reconcile with the congressional scheme. This hardship “exemption” swallows the rule. Ezra Klein aptly summarized the change: “In other words, Obamacare itself is the hardship.” 116 University of Houston Law professor Seth Chandler joked, “Surely, however, the existence of the ACA itself cannot be the human-caused event creating the hardship.” 117 Through this administrative-law shell game, the executive swept away Congress’s exemption design. The Wall Street Journal editorialized, “A tornado destroys the neighborhood or ObamaCare blows up the individual insurance market, what’s the difference?” 118

Those who defended this extremely broad reading of “hardship” in 2013 will now have to reconcile a similarly broad reading of “hardship” in 2017.

Update 4: Here is the full text of the executive order:


By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. It is the policy of my Administration to seek the prompt repeal of the Patient Protection and Affordable Care Act (Public Law 111-148), as amended (the “Act”). In the meantime, pending such repeal, it is imperative for the executive branch to ensure that the law is being efficiently implemented, take all actions consistent with law to minimize the unwarranted economic and regulatory burdens of the Act, and prepare to afford the States more flexibility and control to create a more free and open healthcare market.

Sec. 2. To the maximum extent permitted by law, the Secretary of Health and Human Services (Secretary) and the heads of all other executive departments and agencies (agencies) with authorities and responsibilities under the Act shall exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.

Sec. 3. To the maximum extent permitted by law, the Secretary and the heads of all other executive departments and agencies with authorities and responsibilities under the Act, shall exercise all authority and discretion available to them to provide greater flexibility to States and cooperate with them in implementing healthcare programs.

Sec. 4. To the maximum extent permitted by law, the head of each department or agency with responsibilities relating to healthcare or health insurance shall encourage the development of a free and open market in interstate commerce for the offering of healthcare services and health insurance, with the goal of achieving and preserving maximum options for patients and consumers.

Sec. 5. To the extent that carrying out the directives in this order would require revision of regulations issued through notice-and-comment rulemaking, the heads of agencies shall comply with the Administrative Procedure Act and other applicable statutes in considering or promulgating such regulatory revisions.

Sec. 6. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.



January 20, 2017.

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“A Flaw In The Constitution Itself”

Before President Trump took the oath of office, Senator Roy Blunt (R-MO) offered prefatory remarks. After discussing the election of 1800, he refers to the initial electoral process as a “flaw in the Constitution itself,” a flaw that was remedied by the Twelfth Amendment.

[George Washington] thought the inauguration of the second president would be more important than the inauguration of the first. Many people had taken control of the government up until then, but few people had ever turned that control willingly over to anyone else. and as important as the transfer of the first transfer of power was, many historians believe that the next election was even more important. When in 1801, one group of people arguably for the first time ever in history willingly, if not enthusiastically, gave control of the government to people they believed had a dramatically different view of what the government would, should and could do. After that election that actually discovered a flaw in the constitution itself, which was remedied by the 12th amendment. Thomas Jefferson, at that inauguration, beyond the chaos of the election that had just passed said, “we are all republicans, we are all federalists.”

The word “Constitution” was not mentioned during the inaugural address. George Will’s comments, however, capture my reaction:

Because in 1981 the inauguration ceremony for a cheerful man from the American West was moved from the Capitol’s East Portico to its West Front, Trump stood facing west, down the Mall with its stately monuments celebrating some of those who made America great — Washington, Jefferson, Lincoln. Looking out toward where the fields of the republic roll on, Trump, a Gatsby-for-our-time, said: “What truly matters is not which party controls our government but whether our government is controlled by the people.” Well.

“A dependence on the people,” James Madison wrote, “is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” He meant the checks and balances of our constitutional architecture. They are necessary because, as Madison anticipated and as the nation was reminded on Friday, “Enlightened statesmen will not always be at the helm.”


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Judge Sykes Illustrates How To Perform Meaningful Constitutional Scrutiny By Requiring Actual “Evidence”

The never-ending saga of Ezell v. City of Chicago has yielded another victory for the right to keep and bear arms, from the keyboard of Judge Diane Sykes (I first blogged about this case way back in 2011 when I was still clerking in Pennsylvania!). Eugene Volokh and Dave Kopel summarized the opinions on VC.

In this post, I’ll note that Judge Sykes offers a exemplar of how to perform meaningful constitutional scrutiny–something absolutely devoid in most Second Amendment caselaw. Rather than imposing the burden on the person asserting the right, or even worse, assisting the government by providing arguments that were never advanced in court, Judge Sykes asks the City to provide actual evidence to support its purported interest in public safety.

We explained in Ezell I that the City cannot defend its regulatory scheme “with shoddy data or reasoning. The municipality’s evidence must fairly support the municipality’s rationale for its ordinance.” 651 F.3d at 709 (quoting City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438 (2002)). To borrow from the free-speech context, “there must be evidence” to support the City’s rationale for the challenged regulations; “lawyers’ talk is insufficient.” Annex Books, Inc. v. City of Indianapolis, 581 F.3d 460, 463 (7th Cir. 2009). Here, as in Ezell I, the City’s defense of the challenged zoning rules rests on sheer “speculation about accidents and theft.” 651 F.3d at 709. That’s not nearly enough to satisfy its bur- den. The manufacturing-district and distancing restrictions are unconstitutional.

Observe this standard in practice:

With that point explained, we return to the City’s proffered justification for regulating firing ranges in this way. The City claims that confining firing ranges to manufacturing districts and keeping them away from other ranges, residential districts, schools, places of worship, and myriad other uses serves important public health and safety interests. Specifically, the City cites three concerns: firing ranges attract gun thieves, cause airborne lead contamination, and carry a risk of fire.

The City has provided no evidentiary support for these claims, nor has it established that limiting shooting ranges to manufacturing districts and distancing them from the multiple and various uses listed in the buffer-zone rule has any connection to reducing these risks. We certainly accept the general proposition that preventing crime, protecting the environment, and preventing fire are important public concerns. But the City continues to assume, as it did in Ezell I, that it can invoke these interests as a general matter and call it a day. It simply asserts, without evidence, that shooting ranges generate increased crime, cause airborne lead contamination in the adjacent neighborhood, and carry a greater risk of fire than other uses.

Evidence. To violate constitutional rights you need evidence. Not conjectures. Not post-hoc rationalizations. Actual evidence.

The City’s own expert conceded that there was not even an effort to gather evidence through any research:

The City’s own witnesses testified to the lack of evidentiary support for these assertions. They repeatedly admitted that they knew of no data or empirical evidence to support any of these claims. Indeed, Patricia Scudiero, the City’s zoning administrator, conceded that neither she nor anyone else in her department made any effort to review how other cities zone firing ranges. She conducted no investigation, visited no firing ranges in other jurisdictions, consulted no expert, and essentially did no research at all.

Nor was there any evidence that gun thefts led to an increase in crime:

To shore up its weak defense of the two zoning restrictions, the City submitted a list of 16 thefts from gun stores and shooting ranges around the country since 2010. Only two of these incidents involved thefts from shooting ranges, and no evidence suggests that these thefts caused a spike in crime in the surrounding neighborhood.

What about fire and environmental concerns? Once again, on evidence.

The City’s assertions about environmental and fire risks are likewise unsupported by actual evidence. In its briefs the City relies on a study by the National Institute for Occupational Safety and Health explaining that improperly venti- lated shooting ranges can release lead-contaminated air into the surrounding environment. But the report goes on to describe appropriate filtering techniques that prevent this danger entirely. As for the concern about fire, the City provided no evidence to suggest that a properly constructed and responsibly operated commercial shooting range pre- sents a greater risk of spontaneous combustion than other commercial uses.

Kudos to Judge Sykes for engaging in a meaningful constitutional analysis. Other judges, take notice.

In other areas of law, courts are perfectly capable of striking down laws that are not based on actual evidence. In Whole Women’s Health, for example, the Court even rejected evidence provided by Texas, claiming that it was pretextual, and not really about health and safety concerns. If the courts applied Whole Women’s Health scrutiny to the Second Amendment–which is actually an enumerated right, rather than an emanation from the Due Process Clause–very few gun laws would survive. With the exception of laws barring violent felons from owning arms, or other regulations that consider a person’s propensity to harm others, most gun control measures have only the weakest evidentiary nexus with public safety, and are designed to stigmatize gun owners for exercising their civil rights.

They are also utterly ineffective in actually protecting the public from deranged individuals hell-bent on harming others. As Justice Breyer noted in WWH:

Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.

The Court needs some constitutional consistency, and to treat the provisions of the Bill of Rights equally.

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“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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