Is Constitutional separation of powers (executive-legislative-judicial) dead in america? no more checks and balances?
How many Americans have heard of the case of Youngstown Sheet & Tube Company, decided in 1952 by the U.S. Supreme Court against President Harry S. Truman? Just a week or so ago, I wrote on this blog “Obama’s Dictatorship of the Proletariat Marches Forward” about the President’s signing an executive order than basically “outlawed” or penalized certain “for profit” colleges and universities for advertising to Veterans, among other things. Such an executive order is the act of a dictator, or a King with Divine Right of Legislation. Such actions are now mostly praised as “decisive” when they should be condemned as “utterly outrageous unconstitutional acts of executive usurpation of legislative authority.”
Youngstown, in my never very truly humble opinion, was one of the last times the U.S. Supreme Court rendered a truly, unquestionably, absolutely “original intent” Constitutional decision on the question of Separation of Powers between the Executive and Legislative Branches. The case is interesting in a thousand ways, not least because one of the Petitioner’s (Youngstown‘s) lead attorneys on the case, John W. Davis, was the 1924 Democratic Party nominee for President, who was at that time considered one of the top constitutional lawyers in the United States, but who was within one year of going down in flames (arguably, along with the Constitution) in the case that almost everyone with a (competent) High School or (even moderately competent) College diploma has heard of, namely Brown v. Board of Education.
Because I so admire the Youngstown Sheet & Tube decision, and loudly bemoan and bewail the fact that no one has been talking about the Constitutional Limits on Executive Power over the past 4-24 years, I want to remind this country of the 60th Anniversary of the Youngstown Petition for Certiorari—and yes, let’s ask ourselves what has happened in the interim. This 7 page long winning Petition for Certiorari is attached: 05-03-1952 Petition for Writ of Certiorari in Youngstown Sheet & Tube Company by John W Davis et al (Yes, 24 years would only take us back to 1988, but Executive Power has been on the unConstitutional rise long before that date, so going back 74 years to 1938 when the Supreme Court finally converted over to “New Deal” conformity would be appropriate—in recognition of the “Seventy Fourth Annual Hunger Games” of course…..).
From the perspective of litigation realities in 2012, another amazing aspect of the Youngstown Sheet & Tube Company opinion is given that the Petition for Writ of Certiorari was filed only on May 3, 1952, the decision was handed down on June 2, 1952 (the idea of the Supreme Court of the United States so roundly rebuking the President within less than 30 days is, to the modern jurist and student of laws, inconceivable). But yes, John W Davis and his collaborators (including most of the top lawyers in the country at the time, John C. Gall, John J. Wilson, Luther Day, Charles H. Tuttle, Winfred Pettigrue, Bruce Bromley, and Randolph W. Childs) filed their Petition for Writ of Certiorari on May 3, it was apparently immediately granted, and they submitted their 129 page brief on May 10, 1952. And here it is: 05-10-1952 Petitioner’s Brief in Youngstown Sheet & Tube Co v Sawyer 129 Pages.
Please, everybody: look especially at (and read) “The Necessary Background” Part A starting on Page 30 of the Brief, covering the Constitutional History of the Power Struggle between the Stuart Kings and Parliament through the Adoption of the English Bill of Rights, followed by Part B “The Constitution Provides No Authority for the Seizure or Mr. Sawyer’s Other Actions” on page 37. These New York lawyers wrote straightforwardly and incisively, and the result was decisive. This Brief would qualify as an amazing piece of legal research and writing by the standards of any time, but it just doesn’t happen that way anymore. (Microsoft Word.docx version: 05-10-1952 Youngstown Sheet v Sawyer Brief of Plaintiff Companies Petitioners in 744 & Respondents in 745.)
The U.S. Supreme Court’s Decision in Youngstown is here attached in its historically original format: 06-02-1952 Youngstown Sheet & Tube Co v Sawyer 343 US 579 72 SCt 863 SCOTUS 1952 and in word.docx (and limited case analysis from Westlaw): 06-02-1952 Youngstown Sheet & Tube Co v Sawyer 343 US 579 72 SCt 363 SCOTUS May-June 1952.
WAS YOUNGSTOWN the Last Gasp of a Dying Constitutional Tradition at the U.S. Supreme Court? Was it really necessary for Dwight D. Eisenhower, a Republican, to take office so as to institute a truly Communist Way of Life in America, starting with Brown v. Board of Education? How exactly DID John W. Davis go from brilliantly triumphant lawyer in Youngstown to dismal and disregarded failure the next year in Brown? Without any real doubt, the destruction of John W. Davis’ brand of “Original Intent” Constitutionalism was what it took to pave the way for Obama to become President, and do what he’s doing right now. 74 years after John W. Davis was Democratic Party Nominee for President, his “supposed” nominal successor, allegedly “Democratic” President William Jefferson Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996, which effectively outlawed Habeas Corpus (even though it took another 16 years to reach the extremes enshrined in the 2011 National Defense Authorization Act which Obama signed).
I submit to you that in 1952 the acts of tyranny and dictatorial oppression committed by Barack Hussein Obama were absolutely unimaginable, to the Supreme Court, to the constitutional lawyers, and to the average American. And yet today, hardly anyone bothers to comment or criticize because every day the Federal Government exerts greater and greater control over the American people and their economy. John W. Davis was opposed to all these things and so am I.
Yes, by abandoning its past traditions of Federalism, factions can split this Country and nowhere is this more apparent than in the struggle over such issues as healthcare, State-Federal funding of and control over all aspects of the local economy, and the bizarre continuation of the hopelessly failed “War on Drugs” even as California fights for the Same Autonomy of State’s Rights legislation for which John W. Davis fought in, ironically enough, his final Supreme Court arguments in Brown v. Board of Education.