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Scope of Federal Powers II

• Schechter Poultry Corp. v. United States (203 – 207)
• The New Deal Court (207 – 209)
• NLRB v. Jones & Laughlin Steel Corp. (209 – 212)
• United States v. Darby (213 – 215)
• Wickard v. Filburn (216 – 220).
• The Warren Court (229 – 230)
• Hearts of Atlanta Motel (230 – 238).
• Katzenbach v. McClung (239 – 242)

The lecture notes are here.

Schechter Poultry Corp. v. United States

In Schechter Poultry, often referred to as the Sick Chicken Case, the Supreme Court unanimously invalidated the National Recovery Act, which was a centrla plank of President Roosevelt’s New Deal program.

NLRB v. Jones & Laughlin Steel

Here are some photographs of the Jones & Laughlin Steel corporation, which was located outside of Pittsburgh, Pennsylvnaia.

 

United States v. Darby Lumber Co.

The Darby Lumber Company was located in Bulloch County, Georgia. A historical marker commemorates the business.

 

Wickard v. Filburn

This is farmer Roscoe Filburn.

This is Secretary of the Agriculture Claude Wickard.

This is Wickard, flanked by New Dealers, in front of various charts and projections about the price of agriculture.

Hearts of Atlanta Motel v. United States

The Hearts of Atlanta Motel, located at 255 Courtland Street NE in Atlanta, was owned by Atlanta lawyer Moreton Rolleston Jr. This was a segregate hotel. Rolleston represented himself all the way to the Supreme Court. The location is currently a Hilton.

During the Jim Crow era, “The Negro Motorist Green-Book” provided African Americans with a listing of hotels they could stay while traveling.

These cabins in South Carolina were advertised “For Colored.”

Katzenbach v. McClung

This is Ollie’s Bar-B-Q, the site of Katzenbach v. McClung in Birmingham, Alabama.

Many restaurants only served only white patrons, such as this restaurant in Lancaster, Ohio.

And because I am insane, I purchased an entire case of Ollie’s Bar-B-Q sauce.

And who says trolling eBay for worthless mementos from Supreme Court cases is useless. Recently, for the princely sum of $3.99 plus shipping, I purchased a matchbook from Ollie’s Barbecue–the Birmingham, Alabama establishment of Katzenbach v. McClung fame that refused to serve black customers, insisting that it did not engage in interstate commerce. Though, as the Court found, it purchase most of its meat from a butcher who had procured it from out of state.

In the 12 months preceding the passage of the Act, the restaurant purchased locally approximately $150,000 worth of food, $69,683 or 46% of which was meat that it bought from a local supplier who had procured it from outside the State. The District Court expressly found that a substantial portion of the food served in the restaurant297*297 had moved in interstate commerce.

Now, thanks to the magic of eBay, I submit to the world additional proof that Ollie’s engaged in interstate commerce! Their matchbooks were manufactured by the Universal Match Corporation in Atlanta–across state lines! Read it and weep.

It is impossible to tell exactly when the matchbook was manufactured, but based on the zip code it would have been at least 1963, as that is when zip codes were introduced. The seller on ebay–an expert in matchbooks–told me “I’m guessing late 50’s to early 60’s. The paper from that time was a bit lighter on the back, but not bright white or smooth like later on.” So this is squarely in the time period in which Ollie’s would have run right into Title II of the Civil Rights Act of 1964.

The Address for “Ollie’s World’s Best Barbecue” was 515 8th Ave., So. Birmingham, Alabama 35205. Nothing is there now. They were in that location until 1999.

So here we have it. Further proof that Ollie’s did engage in interstate commerce!

The McClung’s were apparently quite religious, as their matchbook struck a Christian spark. (Oh that pun was awesome).

On the front, the Matchbook says:

“If you never know me, you’ll miss nothing, If you never know Jesus Christ, you’ll miss everything.”

The back of the matchbook quotes from 2 Chronicles 7:14 (King James Version):

 If my people, which are called by my name, shall humble themselves, and pray, and seek my face, and turn from their wicked ways; then will I hear from heaven, and will forgive their sin, and will heal their land.

The Universal Match Corporation, as evidenced by this 1950-era promotional matchbook was located at 317 Buckhead Ave, N.E., Atlanta, Georgia.

 

On January 23, I spoke at a conference on Bioethics after the Holocaust, sponsored by the Center for Medicine after the Holocaust. My lecture focused on Bioethics and the Constitution, starting with the 3/5 Clause, moving onto Prigg v. Pennsylvania and Dred Scott, onto Jacobson v. Massachusetts and Buck v. Bell, followed by Roe v. Wade and Washington v. Glucksberg. I’ve included the official video, my video, audio, and my slide deck.

Class 7 – 2/2/17

Acquisition by Find – Finders Keepers?

• Armory v. Delamirie, 125-126 (shortest case of the semester!)
• Notes, 126-129
• Hannah v. Peel, 129-134
• Notes, 134-135
• McAvoy v. Medina, 135-136
• Notes, 136-144 (Skim)

The lecture notes are here.

When you think of a Chimney Sweep, this image may come to mind.

But this image is probably a lot closer to young Master Armory.

This diagram shows the different ways a sweep can get stuck in a flue.

Frequently the boys would get stuck (the image on the right).

Here are some examples of de Lamerie’s work (courtesy of the Dukeminier property web site).

Here are a number of stories about finding abandoned stuff:

• New York Times article on a jobless man’s find of early Anglo-Saxon treasure in Staffordshire, England, September 2009
• Article on on-going dispute over ownership of Titanic artifacts, Mar. 2009
• NPR story St. Louis’s byzantine process for dealing with lost property, Mar. 2009
• Divers discover thousands of pearls while searching Santa Maria, June 2007
• Odyssey Marine Exploration fights with Spanish government over $500 million in coins recovered from sunken ship, May 2007
• New Yorker article on Odyssey Marine Exploration, April 2008
• Sub Sea Research battles Spain & France over $3 billion of treasure, January 2003
• New York Times article on people who live by finding things in the garbage
• Discovering a ring that was lost 60 years ago

This is a lithograph of Gwernaylod House in Overton-on-Dee, Wales (1829)

Here is a trailer for a fascinating documentary about the legal fight between two men who claim to have caught Barry Bonds’s record-breaking 73 homerun in 2004.

And here is the moment it hits the crowd.

On Monday, the Washington Attorney General challenged the constitutionality of President Trump’s executive order, seeking a temporary restraining order. Barely three weeks after the inauguration, and now progressive states are filing suit to seek nationwide injunctions against executive actions on immigration. This wasn’t always their position. The times, they are a- ‘.

Two years ago, in Texas v. United States, Washington Solicitor General Noah Purcell urged the 5th Circuit to reverse Judge Hanen’s nationwide injunction, stating that it was overboard. Specifically, the injunction should not extend to states that welcomed DAPA.

The district court ignored these principles. It entered a broad, nationwide injunction, even though the only evidence of harm it cited related to driver’s license costs in Texas. Meanwhile, thirteen Amici States were before the court arguing that we would benefit from the directives, many other States never joined Plaintiffs’ lawsuit and have never alleged that the directives will harm them, and even the vast majority of Plaintiff States offered no evidence that the directives would harm them. By entering a nationwide injunction based entirely on evidence of purported harm to a single state, the district court abused its discretion. See, e.g., Roho, 902 F.2d at 361; Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009) (“‘[a]n overbroad injunction is an abuse of discretion’”) (alteration in original) (quoting Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991)).

In short, even if the district court’s flawed findings of harm to the Plaintiff States were accurate, those findings could not possibly justify injunctive relief in other States, especially where the amici States stand before this Court asserting that we welcome the immigration directives and expect to benefit from them.

In other words, even if DAPA is unlawful, the injunction should not be extended nationwide. In particular, it should not bind states that “expect to benefit” from the program.

The Fifth Circuit rejected this argument, citing Article I’s and Congress’s demand for a “uniform” system of immigration laws, an injunction must be nationwide.

The government maintains that the nationwide scope of the injunction is an abuse of discretion, so it asks that the injunction be confined to Texas or the plaintiff states. But partial implementation of DAPA would undermine the constitutional imperative of “a uniform Rule of Naturalization” and Congress’s instruction that “the immigration laws of the United States should be enforced vigorously and uniformly.” A patchwork system would “detract[] from the ‘integrated scheme of regulation’ created by Congress.” Further, there is a substantial likelihood that a partial injunction would be ineffective because DAPA beneficiaries would be free to move between states.

So long as an alien could receive DAPA in Washington, nothing would stop him from crossing the (state) border and move to Texas, at which point he would have been entitled to apply to a driver’s license, and thus inflict costs. This analysis is exactly right.

Now, with Trump in office, everything is reversed. Washington seeks a nationwide injunction to halt Trump’s executive order in all states–even those states that want it to be enforced.Texas, I’m sure, “expect[s] to benefit” from the Executive Order. Too bad says Washington–immigration policy must be uniform. Fittingly, Washington cites Texas as the leading precedent.

While the State seeks a nationwide injunction, that relief is appropriate for two reasons: (1) Congress and the courts have emphasized the importance of uniformity in applying immigration policies nationwide; and (2) nationwide relief is necessary to ensure that State residents and those traveling to meet them are not stopped at other ports of entry around the country or interfered with by officials in Washington, DC, on their way to Washington State. See, e.g., Texas v. United States, 787 F.3d 733, 768-69 (5th Cir. 2015) (affirming nationwide injunction to ensure uniformity and provide full relief).

Immigration policy must be uniform, so if the executive order is unlawful, a nationwide injunction is entirely appropriate.

I don’t pretend litigators have any duty for consistency. In fact, I’m glad the Washington SG (who has taken me out of context before) saw the light–sooner rather than later.

Update: On 2/3, the District Court issued a nationwide injunction, specifically citing the need for uniformity in the immigration laws.

D.Wa. issues nationwide injunction, citing need for uniform immigration laws–arg that Wash opposed in TX litigation https://t.co/QSYN9jh9IS pic.twitter.com/ky8RFGPRhk

— Josh Blackman (@JoshMBlackman) February 4, 2017

Today I was a guest on 1A, a new public radio program syndicated nationally from WAMU in Washington, D.C. (It filled the slot formally occupied by the Diane Rehm Show). Host Joshua Johnson invited me, Ken Jost, and Elizabeth Wydra, to discuss all facets of the Gorsuch nomination. The conversation, nearly an hour long, was fun and engaging. You can listen here or here: