Petition for Writ of Certiorari — Schroder v. Bush
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| ) Supreme Coust, U.S,
FILED
O1 744 Nov 21 2007
OFFICE OF THE CLERK
No.
In The
Supreme Court of the United States
¢
EUGENE SCHRODER; EDWIN PETROWSKY;
R. RUSSELL GRIDER; and WESLEY MYERS,
Petitioners,
GEORGE W. BUSH, President of the United States;
ANN M. VENEMAN, United States Secretary of
Agriculture; PAUL H. O’NEILL, United States
Secretary of the Treasury; and
UNITED STATES OF AMERICA,
Respondents.
*
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Tenth Circuit
¢
PETITION FOR A WRIT OF CERTIORARI
¢
Wa ker F. Topp
Counsel of Record
Attorney at Law
1164 Sheerbrook Drive
Chagrin Falls, Ohio 44022
(440) 338-1169
Attorney for Petitioners
——
oe
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
(2400
QUESTIONS PRESENTED
Petitioners, a group of four farmers residing in Colo-
rado, New Mexico, and Kansas, brought an action against
the United States for an injunction against farm fore-
closures until parity pricing principles, declared to be the
underlying law of U.S. agriculture in 1933 and never
repealed or suspended, were enforced in the United
States. They also sought a declaratory judgment regard-
ing the continuing validity and effect of farm parity,
which they argued was the principal component of a
four-part compensatory scheme for market conditions in
agriculture enacted in the mid-1930s to validate the regu-
latory taking of U.S. farmers’ production rights under the
Agricultural Adjustment Act of 1933. 7 U.S.C. Section 601.
They argue that the taking continues, that neither parity
nor other components of the four-part scheme are
enforced for the benefit of U.S. agriculture even though
the powers at issue were delegated for the principal
benefit of agriculture, together with other key economic
sectors, and that these powers were delegated perma-
nently and unconstitutionally, without intelligible princi-
ples by which they may be reviewed, and in some
instances without submission to political review through
the congressional appropriations process. The Tenth Cir-
cuit nevertheless held that the district court ruled prop-
erly in dismissing the action below for (a) raising
nonjusticiable political questions and (b) failing to state a
cause of action on which relief could be granted, the relief
requested raising matters of (principally) executive
branch discretion.
ii
QUESTIONS PRESENTED - Continued
The questions presented are:
I. Whether the enforcement of laws already
on the statute books, the factual basis of
the relief requested here, raises nonjusticia-
ble political questions, as distinguished
from the typical political question in which
one party or another seeks adoption of a
novel policy;
Il. Whether the subject matter of the amended
complaint below raises issues that are so
involved with executive branch discretion,
especially in foreign policy matters and
their application to U.S. domestic agricul-
ture, that the federal courts should not and
cannot grant forms of relief that invade
such discretionary areas; and
III]. Whether it is constitutional, on its face or
as applied, for Congress to delegate perma-
nently to the executive branch, without
statutory articulation of intelligible princi-
ples for the delegation or statutory subjec-
tion of the delegation to political review
through the appropriations process, subject
matters that the U.S. Constitution textually
confides to Congress alone (or in one
instance, a shared power of the executive
and legislative branches that effectively is
exercised by the executive branch alone).
iii
STATEMENT PURSUANT TO RULE 29.6
Petitioners Eugene Schroder, Edwin Petrowsky, R.
Russell Grider, and Wesley Myers each and all state that
they are suing the United States in the present action in
their individual capacities and that none of them and
none of their farming interests is or has been since the
commencement of the present action a subsidiary or an
affiliate of any publicly owned corporation. None of them
is the owner of more than a ten percent interest in any
corporation. No publicly owned corporation has a finan-
cial interest in the outcome of this petition for certiorari.
iv
TABLE OF CONTENTS
Page
Ce FU ais i icbcecceeccodbes chenndiae i
Statement Pursuant to Rule 29.6..............e000: iii
eee OE GI oo ook bis cbcocdccaxissvnseesuceres iv
TE A FI i 5 kon ws ioc Sasa inn hhechnetaces vi
CO BI 5 ka cececticesckasuieeeds beeen eeees 1
eI AE Fo 0 0.05.4 Aan had os ac anaseees 1
Constitutional and Statutory Provisions Involved... 1
ath ae Cl Ce i ens vce aaah akwiens 2
1. Positive Statement of the Petitioners’ Case... 2
2. Statement of the Appellate Case: Petitioners’
ES 8 rrr noe me 13
3. Note on Federal Jurisdiction ................. 16
Reasons for Granting the Writ..............-..066. 18
I. The Decision Below Grants the Executive
Branch Unfettered Discretion to Regulate
Domestic Economic Activity in the Name of
WSU FAIIIUUD, 6 oe iets Sede conve cevesdvses< 21
A. Conduct of Foreign Affairs Impinges on
Domestic Agricultural Economy......... 21
B. The Nondelegation Principle Is Violated... 23
II. Prudential Abstention Principles Said to Be
Embedded Within the Nonjusticiable Political
Question Doctrine Prove on Closer Inspection
to Be Inapplicable to Petitioners’ Case, but
Tenth Circuit Will Buttress Other Misled Cir-
fk Per rrrreer errr TTT rery s 26
Vv
TABLE OF CONTENTS - Convu © 2d
Page
Ill. This Court Can and Should Grant the Forms of
Relief Requested ..........-eeeeeeeeeereeeees 27
IV. The Tenth Circuit Has Misconstrued Peti-
tioners’ Takings Claim, Which Is a Statutory or
Regulatory Takings Claim Analogous to the
EMCEE ROOD. ci iccncictvccensdacseeurvessucwrss 28
ES ie kacwekeraaeiekieaeues 30
vi
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Baker v. Carr, 369 U.S. 186 (1962) ............ 14, 19, 26
Barlow v. Collins, 397 U.S. 159 (1970).............6.. 20
Butler v. United States, 297 U.S. 1 (1936)......... ea eae
Chicago & S. Air Lines v. Waterman S.S. Corp., 333
EEE 04 5.6 whine wheneks nee ehdaunwien cereus 26
Dames & Moore v. Regan, 453 U.S. 654 (1981)........ 27
Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S.
EES i ca bawikkcesnbane tenceeeunds piseedees: 20
Goldwater v. Carter, 444 U.S. 996 (1979).............. 24
].W. Hampton, Jr., & Co. v. United States, 276 U.S.
Es + ao ha shed ie ce getusnGws ceuenaeee 8, 14, 25
Home Building & Loan Ass’n v. Blaisdell, 290 U.S.
I orig a a0 52 oa bene AVE RNS BORE RC ORA 20, 28
INS v. Chadha, 462 U.S. 919 (1983) ........... 14, 19, 26
Japan Whaling Ass'n v. American Cetacean Society,
ee Be a ES o's nub cd decane eeevakeebexsaes 25
Lucas v. South Carolina Coastal Council, 505 U.S.
re RR err Tre erry pe 21, 28, 29
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316
Oh ce recess vane dss kane peeks cekeee ein ca es 30
Marbury v. Madison, 5 U.S. (1 Cranch) 137
Ge is acne cache ekbas oe Coscennd esneaern 14, 19, 26
Vii
TABLE OF AUTHORITIES - Continued
Page
Nixon v. United States, 418 U.S. 683 (1974)........... 17
Parker v. Brown, 317 U.S. 341 (1943)..........+.-. 20, 28
Schroder v. Bush, 263 F.3d 1169 (10th Cir. 2001) .. passim
United States v. Curtiss-Wright Export Corp., 299
US. SOS CITGO) onc icccevescusessvcess 9, 18, 19, 21, 24
West Lynn Creamery, Inc. v. Healy, 512 U.S. 186
STORED oi cdavccntcdesvccnedesnccbesesesasetentaeuss 20
Whitman v. Amer. Trucking Ass’n, Inc., 531 U.S. 437,
120 S.Ct. 903 (2001) .......eeeeeeeeecess 8, 14, 19, 25
Wickard v. Filburn, 317 U.S. 111 (1942)............ 20, 29
Youngstown Sheet & Tube Co. v. Sawyer (Steel Sei-
zures), 343 U.S. 579 (1952) ....... eee cece ween 17, 27
U.S. CONSTITUTION
py Ree ere Teer eS he rey eed 1
sic c ue adenedaweewssaeeetebebe tstevdsewes 1
I CS © ok is peccccv noes roe 000s p00es0nuns 1
I lekeuevebansenvaves Ate 1, 23
NE Oe iin od ave ex de bwds Jo baee eae tees L& 23
I Tn sn sc auss ayeude Casans,eaebenen 1, 8
Article II, Section 1, Clause 1.................. 2. 2
eS a eee eer eee Te eee eee a 3
Pthets TV, Geet 4 onc cc cc ccc cet eat cteeeveucedsocses 1
ee ing sick awards se eck cervevves 1, 13, 16, 28
Amendment XIV, Section 1.............+6. 1, 13, 16, 28
Vili
TABLE OF AUTHORITIES - Continued
Page
STATUTES
PGs, FINE Ais oe ekednd ov seveveear 2, 16, 17
7 U.S.C. Section 291 (Capper-Volstead Act).......... 10
F es I FE ea a be ASRS TER on hn db dag Kendetees 10
7 U.S.C. Section 601 (Agricultural Adjustment Act
IN ic bn GOW HON CHE ee EES dec ods 080 4 Oe 2, 3, 29
Pe EE ee icone cate delenit ee ESAS eee 3
Pe I OE. ccnes bb dn oun Chere cusnemey oases. 3
PU Gee I oii ik erie 9, 12
7 Ree SE I oid. 6 kik vee Wai vane bol tes exebieee es 4
7 U.S.C. Section 7301 (Freedom to Farm Act of
RS kin casas ba vac bad been kkesees x 4 7, 12
12 U.S.C. Section 225a..... ein gin kek pas NA ceeded 22
Be See SOE 6 bic Sinbncad coed beds seri iteiaee 22
i EE PE hit bei cde diccneevcuxeuc eb anneei 22
15 U.S.C. Section 1 (Sherman Anti-Trust Act of
a 56 ch eb Fen eee bo ARR ehh AR ELE 9
WUE TE isi is 9
SD ae ek Pe HE bike bo oes 2kcbs vp ckerneckcseses 4
19 U.S.C. Section 1351 (Trade Agreements Act of
iia bike t een cae cc Vaile es te eae 2, 8, 9
en SG Be CS os vb ob. 0'o ove op Devine a coh deers 1
a IE RG hk o's Phe pk bis cane hcecbaereune 2, 16
28 U.S.C. Section 1491 (Tucker Act)................. 15
ix
TABLE OF AUTHORITIES - Continued
Page
28 U.S.C. Section 2401 .....-.. eee eeereeeeees 15, 16, 30
28 U.S.C. Section 2409a.......seeee reer e cere 15, 16, 30
31 U.S.C. Section 5301 (Thomas Amendment of
AID isc Cae S Sin 80 ee Chie 08 a8 088 Cee ORTEND He 4,5, 6
31 U.S.C. Section 5302 (Gold Reserve Act of
| re rr rer rr Terr tr a 434.7, 3
31 U.S.C. Section 5304 ......c cece cece cree ener neces 5, 6
50 U.S.C. Section 1701 (IEEPA)......----eeee essere 2
50 U.S.C. Sections 1701-1706 (IEEPA).....-.-+++++++> 27
Former Mexican Debt Disclosure Act of 1995
(expired 1997) .....ceeceeeeceecererereeeeteceseees 5
TREATISES AND OTHER AUTHORITIES
Published
Elizabeth Becker, $88 Billion Farm Bill Wins
Approval of Senate Panel, N.Y. Times, Nov. 16,
POOL, at A-18......ccccccccevccccccecrsccercereer® 12
Alexander M. Bickel, The Least Dangerous Branch
(2d @d. 1986)... crceccccccccccnvecccccsvascesers 18
Richard H. Fallon, Jr., Daniel J. Meltzer, & David
L. Shapiro, Hart & Wechsler’s The Federal Courts
and the Federal System (4th ed. 1996) ......---+-+>> 24
Harold Hongju Koh, The National Security Consti-
tution: Sharing Power After the Iran-Contra Affair
OO gc ivnecerecchsxetparsso feces hese tee 24, 25, 26
TABLE OF AUTHORITIES —- Continued
Page
Letter, Secretary of the Treasury Robert Rubin to
House of Representatives Speaker Robert Liv-
ingston (R.-Lou.), June 23, 1998, in CMRE
Monograph No. 54, at 16 (see, Schwartz refer-
ence below for Monograph No. 54).............4.. 6
Arthur M. Schlesinger, Jr., The Coming of the New
ee EN bes ores oendetesdbeedonswecsbweubecks 16
Anna J. Schwartz, Time to Terminate the ESF and
IMF and Declaration of Anna J]. Schwartz, in
Walker F. Todd, ed., Time to Abolish the Interna-
tional Monetary Fund and the Treasury's Exchange
Stabilization Fund: Documents on Their Origins,
Consequences, and Failures, With a Roadmap to
Abolition 4-27, 28-34, Monograph No. 54 (Dec.
1998), Comm. for Monetary Research & Educ.
Gee s Ov ewccvecccevtveveseueevei¥ennndecweusscees 7
Unpublished
Randy Cook, History of Parity, Sept. 29, 2000........ 3
Ed Petrowsky, On Flour Mills in Kansas, Oct. 19,
BOGE civ ect elcesiudesdecés evades seuveceaveedenhione 10
1
PETITION FOR A WRIT OF CERTIORARI
Petitioners respectfully petition for a writ of cer-
tiorari to review the judgment of the United States Court
of Appeals for the Tenth Circuit in this case.
OPINIONS BELOW
The district court’s opinion (per Kane, J.) dismissing
petitioners’ complaint (Appendix [“Pet. App.”] 17a-18a)
is unpublished at this writing. The ruling by the court of
appeals (per Ebel, J., joined by McWilliams and Brimmer,
JJ.) affirming (Pet. App. l1a-16a) is published at 263 F.3d
1169. There are no subsequent hearings or opinions.
STATEMENT OF JURISDICTION
The court of appeals entered its opinion on August
24, 2001. Petitioners invoke this Court’s jurisdiction.
under 28 U.S.C. Section 1254 (1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The constitutional provisions relevant to this petition
are as follows: In Article I (congressional powers), section
1 (legislative power); section 7 (origin of revenue bills);
section 8, clauses 2 (borrowing money), 3 (regulation of
interstate and foreign commerce), and 5 (coining and
regulating value of money and of foreign coin); and sec-
tion 9, clause 7 (appropriations). In Article II (executive
powers), section 1, clause 1 (executive power) and section
2, clause 2 (treaty power). In Article IV (general powers),
section 4 (guarantee or republican form of government).
Among the Amendments, number 5 (due process and
taking clauses) and number 14 (civil rights), section 1
(privileges and immunities, due process, and equal pro-
tection clauses). The pertinent constitutional texts are
reprinted in the Appendix at 19a-21a.
The principal set of statutes relevant to this petition
is the Agricultural Adjustment Act of May 12, 1933, as
2
amended (7 U.S.C. Section 601, et seq.), together with
associated agricultural statutes, of which pertinent por-
tions are reprinted in the Appendix at 22a-51a. Jurisdic-
tional statutes cited either in the court of appeals opinion
or petitioners’ briefs below and referred to here include
the Administrative Procedure Act (5 U.S.C. Section 702),
general federal jurisdiction under 28 U.S.C. Section 1331,
and various portions of Title 28, of which pertinent por-
tions are printed in the Appendix at 22a, 62a-67a. Money
and banking statutes relevant to this petition are various
provisions of the Federal Reserve Act from Title 12 (Pet.
App. at 51a-53a) and the Gold Reserve Act of 1934 from
Title 31 (Pet. App. at 67a-71la). Antitrust and national
policy goals statutes relevant to this petition are from
Title 15 (Pet. App. at 54a-58a). Provisions of the Trade
Agreements Act of 1934, as amended (19 U.S.C. Section
1351), that are relevant to this petition are reprinted in the
Appendix at 58a-62a. Provisions of the International
Emergency Economic Powers Act (50 U.S.C. Section 1701,
et seq.) that are relevant to this petition are reprinted in
the Appendix at 71a-78a.
STATEMENT OF THE CASE
1. Positive Statement of the Petitioners’ Case
Petitioners, since the inception of their actions lead-
ing to the filing of the complaint and amended complaint
in the district court, consistently have made the entirety
of the following argument, which is the positive state-
ment of their case:
During the perceived national economic emergency
in early 1933, executive branch authority to promulgate
extraordinary orders for the regulation of the domestic
U.S. economy in peacetime was founded on a World War
I wartime statute, the Trading With the Enemy Act of
1917. Doubts about the president’s peacetime authority to
issue the bank holiday order on March 6, 1933, and
related orders were to be resolved by congressional pas-
sage of resolutions supporting those orders on March 9,
3
1933. The national economic emergency was extended to
U.S. agriculture by the Agricultural Adjustment Act of
May 12, 1933, as amended (AAA). 7 U.S.C. Section 601, ef
seq. (Pet. App. at 22a-51a). This emergency, as applied to
domestic U.S. agriculture, never has been allowed to
expire. Compare 7 U.S.C. Section 613 (AAA ends when-
ever the president or secretary of agriculture says that it
ends, Pet. App. at 28a) with 7 U.S.C. Section 7301 (list of
statutes suspended or repealed by the “Freedom to Farm
Act” of 1996, including none of the statutes cited in this
petition, Pet. App. at 48a-51a). The continued regulation
of U.S. farmers’ production rights constituted and still
constitutes a statutory and regulatory taking of a private
property right for which just compensation has to be paid
if the taking is to be constitutional, either on its face or as
applied.
In lieu of direct monetary compensation for the 1933.
taking of farmers’ production rights, ample authority
documents that Congress authorized the executive
branch to offer farmers a four-part compensatory scheme
intended to create market conditions in agriculture con-
ducive to the establishment of pricing parity. 7 U.S.C.
Section 602 (a)(1) (Pet. App. at 26a). The first of the four
parts of that scheme, parity, was to be calculated accord-
ing to formulas set forth in 7 U.S.C. Section 1301 (a) (Pet.
App. at 29a-32a), essentially based on a comparison of the
index of farm prices received vs. costs of farmers’ inputs
for the base period 1910-1914. Id. at Section 1301 (a)(1)(B).
The parity provisions of the AAA have been amended
many times, including a 1949- restatement that is the
underlying law of parity today. See, e.g., 7 U.S.C. Section
1301 (a)(1)(G) (Pet. App. at 31a). Subsequent farm bills
enacted every four or five years essentially have been
mere suspensions of parity or, as one authority on parity
explained it, “alternative means of reaching parity”: In
the absence of enactment of a new farm bill, the underly-
ing parity provisions of the AAA (in this case, 1949
parity) automatically become the operative law of the
land in agriculture. See, Randy Cook, History of Parity,
>
Sept. 29, 2000 (unpublished), in Appendix for Piaintiffs’
(Petitioners’) Appellate Brief (this case), at 17-24, filed in
10th Cir., Oct. 29, 2000. Parity is still referred to as a
national goal for agriculture. 15 U.S.C. Section 1022c
(C)(ii) (Pet. App. at 57a). Parity still is the basis for the
compensatory formula for U.S. farmers adversely affected
by trade embargoes implemented by the executive branch
in pursuit of foreign policy goals. 7 U.S.C. Section 5671
(b)(1)(C), (b)(2) (Pet. App. at 47a-48a). This statute was
enacted in 1979, and 15 U.S.C. Section 1022c was
amended as recently as 1990. If parity is no longer the law
of the land, having expired with either the 1938 revision
of the AAA or the post-1955 train of intermediate-term
farm bills that culminated in the Freedom to Farm Act of
1996 (7 U.S.C. Section 7301, Pet. App. at 48a-51a), as
critics of the Petitioners’ lawsuit contend, then how does
one explain these statutes? Moreover, a series of U.S.
Supreme Court decisions from the 1930s to the present
moment (cited in connection with this argument in Rea-
sons for Granting the Writ below) also has confirmed the
currency of parity as the underlying agricultural law of
the land by reference to it.
The second part of the four-part compensatory
scheme for agriculture from the mid-1930s is foreign
exchange regulation. Under 31 U.S.C. Section 5301 (Pet.
App. at 67a-68a), originally part of the Thomas Amend-
ment of AAA (May 27, 1933), the President is authorized
to require the Secretary of the Treasury to enter agree-
ments with the Federal Reserve Banks and the Board of
Governors to conduct open-market operations in support
of Treasury objectives if U.S. foreign commerce is
adversely affected by instability in the value of foreign
coins and currency. Later, on January 30, 1934, Congress
enacted the Gold Reserve Act, now codified at 31 U.S.C.
Section 5302 (Pet. App. at 69a-70a), to authorize the Secre-
tary of the Treasury, subject to the President’s approval,
to operate the present Exchange Stabilization Fund (ESF)
with respect to foreign exchange market interventions.
a a a SE a a
5
It appears that originally loans to foreign countries
by the ESF were not contemplated. Indeed, other federal
departments, such as Commerce or State, or agencies,
such as the former Reconstruction Finance Corporation or
the Agency for International Development, made such
loans, but practices evolved between the Treasury and the
Federal Reserve since about 1960 (including Federal
Reserve funding of the ESF’s loans outside the congres-
sional appropriations process) that eventually (1977-1978)
gave rise to congressional restrictions on ESF loans. See,
e.g., id. at Section 5302 (b) and (c) (Pet. App. at 69a-70a);
former Mexican Debt Disclosure Act of 1995, codified
following this section, expired in 1997 (Pet. App. at 70a).
Section 5304 (Pet. App. at 71a) authorizes the Secretary of
the Treasury to issue any necessary regulations under
both Sections 5301 and 5302.
The sticking point in this set of statutes, originally.
enacted in the full flowering of the President’s near-
dictatorial powers under the First New Deal, is the provi-
sion that, subject to the President’s approval, the ESF
is under the exclusive control of the Secretary
[of the Treasury], and may not be used in a way
that direct control and custody pass from the
President and the Secretary. Decisions of the
Secretary are final and may not be reviewed by
another officer or employee of the Government.
Id. at Section 5302 (a)(2) (Pet. App. at 69a) (part of original
statutory language, never amended). The Federal Govern-
ment argues that this language means that no court
may review actions of the ESF and that Congress also
receives reports about ESF activity only by grace of the
executive branch, not by any statutory or constitutional
right.1 A more appropriate interpretation of this set of
1 Originally established under two-year emergency
statutes, the ESF was made permanent in 1945. In June 1998,
after the original Mexican Debt Disclosure Act of 1995 had
expired and following press reports of new ESF loan
6
statutes is that (1) they should be construed together, 31
U.S.C. Sections 5301-5304 (Pet. App. at 67a-71a); (2) the
Treasury cannot evade review of agency action (in this
case, for an agency that existed before the first Adminis-
trative Procedure Act was enacted in 1940) merely by
failing to issue appropriate regulations; (3) the “sole and
unreviewable control of the President and Treasury” lan-
guage for the ESF is unconstitutional on its face and
reasonably should be interpreted to save its constitu-
tionality by allowing the federal courts to review the
agency’s actions; and (4) in exercising appropriate
authority over the ESF under the relevant statutes, the
President and Secretary of the Treasury should take note
of market conditions in U.S. agriculture rationally and
demonstrably caused by the depreciation of particular
foreign currencies and coins from their normal standards
of value.
This much rationally appears to be comprehended
within the existing ESF statutes: It cannot be argued
credibly in a constitutional republic that the President
and the Secretary of the Treasury may use the ESF as
personal piggy banks of foreign exchange in the nature of
commitments to various East Asian countries that had been
encountering foreign payments difficulties since the summer of
1997, members of Congress attempted to enact an amendment
of 31 U.S.C. Section 5302 limiting the authority of the ESF to ;
make loans to foreign countries without the prior, explicit
approval of Congress to a maximum term of six months and a
maximum amount of $1 billion. Secretary of the Treasury Robert
Rubin sent a letter for the executive branch to House of
Representatives Speaker Robert Livingston (R.-Lou.) on June 23,
1998, threatening to ask the President to veto the appropriation
for the Treasury and the U.S. Postal System if this amendment
passed. The amendment failed in the House, 221-195. Thus, the
Treasury continues to assert unreviewable, unilateral,
unappropriated authority for the ESF that renders its structure
unconstitutional on its face and its operations unconstitutional
as applied.
|
7
executive branch slush funds. See, Anna J. Schwartz, Time
to Terminate the ESF and IMF and Declaration of Anna J.
Schwartz, in Walker F. Todd, ed., Time to Abolish the Inter-
national Monetary Fund and the Treasury's Exchange Stabiliz-
ation Fund: Documents on Their Origins, Consequences, and
Failures, With a Roadmap to Abolition, 4-27, 28-34, Mono-
graph No. 54 (Dec. 1998), Comm. for Monetary Research
& Educ. The basic argument of Petitioners with respect to
the ESF is that U.S. foreign exchange policy since 1995
has been conducted without regard to the interests of U.S.
agriculture. However, the nature of the extraordinary
authority over foreign exchange delegated to the Presi-
dent and the Secretary of the Treasury, 31 U.S.C. Section
5302 (a)(2) (Pet. App. at 69a), and the general deregula-
tion of the production controls side of U.S. agriculture
under the Freedom to Farm Act of 1996, 7 U.S.C. Section
7301 (Pet. App. at 48a-51a), objectively require the Presi-.
dent and the Secretary of the Treasury to take the inter-
ests of U.S. farmers into account in managing foreign
exchange and in structuring post-currency-devaluation
International Monetary Fund (IMF) bailouts of major for-
eign competitors of U.S. agricultural producers, like those
for Brazil (1999-2000), Argentina (2000-2001), and Turkey
(2001).
Petitioners contend that the ESF, both as created and
as administered, is unconstitutional, both on its face and
as applied. The statute originally creating the ESF as an
emergency measure, subsequently renewed at two-year
intervals, might have strengthened some of the modern
jurisdictional objections to any case challenging the ESF’s
creation by providing for expiration of the authority dele-
gated to the President and the Secretary of the Treasury
before the next succeeding session of Congress. Such an
agency clearly could be reformed within the political
operations of the executive and legislative branches and,
moreover, by the time any court challenge to the ESF
reached the U.S. Supreme Court, the matter probably
would have been moot if the authorizing statute were
8
allowed to expire without renewal. However, the perma-
nent creation and existence of the ESF as it stands, not
subject to annual appropriations except for its incidental
operating expenses (see, U.S. Constitution, Art. I, Sec. 9,
cl. 7, in Appendix at 19a), an entity that lacks articulated
intelligible principles for its operation, and exercising
exclusively a power (the regulation of foreign exchange)
that in the text of the Constitution is reserved to Congress
alone (Art. I, Sec. 8, cl. 5, in Appendix at 19a) and is
nowhere given to the executive branch unless it be within
the general executive powers (Art. II, Sec. 1, cl. 1, in
Appendix at 19a), raises all the issues of the non-delega-
tion doctrine discussed in Justice Thomas’s concurring
opinion in Whitman v. American Trucking Ass'n, Inc., 531
U.S. 437, 121 S.Ct. 903, 919-920 (2001) (Pet. App. at
79a-80a), citing J.W. Hampton, Jr., & Co. v. United States,
276 U.S. 394, 408 (1928) (on the “intelligible principle”
doctrine for congressional delegations of power).?
The third component of the 1930s four-part compen-
satory scheme for U.S. agriculture that is at issue in
Petitioners’ case is the Trade Agreements Act of June 12,
1934, as amended (19 U.S.C. Section 1351, Pet. App. at
58a-62a). This Act, also passed by the First New Deal
Congress, created the executive branch Office of the U.S.
Trade Representative (OTR). Previously, trade agreements
with foreign countries were viewed as treaty matters and
typically were negotiated by representatives of both the
executive branch and the U.S. Senate, reflecting the
shared treaty-making power. U.S. Constitution, Art. Il,
Sec. 2, cl. 2. (Pet. App. at 20a). One of the possibly
unforeseen consequences of the Act creating the OTR was
that the operations of that office became swept into the
general rubric of the unilateral executive branch conduct
of foreign affairs, a doctrine that acquired great currency
2 The Petitioners’ case in both the district court and the
court of appeals was commenced, and oral argument in the
court of appeals was held, before the Whitman case was decided.
9
for the first time in the mid-1936s, albeit without founda-
tion in previous constitutional jurisprudence or actual
practice. After all, what precedents does Justice Suther-
land cite for his famous dictum in Curtiss-Wright? See, e.g,
United States v. Curtiss-Wright Export Corp., 299 U.S. 304,
320 (1936). In granting the President and the OTR extraor-
dinary authority to make executive trade agreements
with the practical legal effect of treaties in derogation of
the constitutionally shared treaty-making power, Con-
gress stated explicitly that the President, “in the course of
negotiating any foreign trade agreement under this sec-
tion [19 U.S.C. Section 1351], should seek advice from
representatives of industry, agriculture, and labor.”
(Emphasis added.) Id. at Section 1351 (f) (Pet. App. at
62a). Petitioners contend that, especially in post-1993
trade agreements (supremely exemplified in the North
American Free Trade Agreement with Mexico in 1993),
the interests of U.S. farmers were not consulted, or were:
ignored if they were. The issue of statutory interpretation
raised is whether the statute just cited, expressing the
“sense of the Congress,” is a binding condition on the
President’s exercise of the OTR authority delegated by
this statute. If it is, then like parity and foreign exchange
regulation before it, this third element of the 1930s four-
part compensatory scheme for the statutory and regula-
tory taking of U.S. agricultural production rights has
been abandoned.
The fourth element of the four-part compensatory
scheme is regulation of market concentrations in agricul-
ture. The Sherman Anti-Trust Act of 1890 was amended in
1937 specifically to increase the authority of the US.
Department of Justice to initiate anti-trust enforcement
actions against persons whose activities tended to
increase market concentrations in agriculture. 15 U.S.C.
Sections 1, 18 (Pet. App. at 54a-56a). Section 18 of this
title in particular prohibited acquisitions of shares of
stock or assets of other persons where the effect of the
acquisitions would be “substantially to lessen competi-
tion, or to tend to create a monopoly.” At the same time, 7
10
U.S.C. Sections 291 and 292 (Pet. App. at 22a-25a) essen-
tially prohibited farmers from combining to raise prices.
In the thinking of the creators of anti-trust policy in
the 1930s, it would have made little sense to promise
farmers parity, on the one hand, and then to allow sellers
of farmers’ inputs, or buyers of their outputs, to concen-
trate their resources through mergers and acquisitions
and thereby regain pricing power over farmers that the
promise of parity was intended to prevent. Still, through
governmental inaction, at both the federal and the state
levels in recent decades, sellers of farmers’ inputs have
been allowed to concentrate their resources SO that
farmers have far fewer choices about brands of equip-
ment, seeds, fertilizers, etc., to purchase and of places to
purchase them than only a few decades ago. Similarly,
farmer producers selling the main commodity crops that
have been the subjects of extensive U.S. Department of
Agriculture regulation and subsidies since the 1930s
increasingly confront a paucity of buyers. In Kansas, for
example, a major wheat-producing state, only 18 flour
mills bid for grain today, and only two of them could be
regarded as truly independent of the four large, multina-
tional grain companies that control the U.S. grain trade.
See, Ed Petrowsky, On Flour Mills in Kansas
(unpublished), Oct. 19, 2000, in Appendix for Plaintiffs’
Appellate Brief (this case) at 25, filed October 29, 2000.
Worst of all, concentrations in production techniques
due to the spread of contract farming and direct competi-
tion (some of it subsidized by U.S. government programs)
with U.S. farmers from offshore production facilities
owned or controlled by the four largest multinational
grain companies have presented U.S. farmers with
unforeseen difficulties that arise from the failure of offi-
cial anti-trust policy enforcement. Thus, the fourth and
final element of the compensatory scheme for the taking
of U.S. farmers’ production rights also has failed as an
outgrowth of official U.S. governmental policy.
What is the upshot of the positive statement of the
Petitioners’ case? It is fundamentally a takings case, but a
11
takings case of a sort that the federal courts do not
usually encounter. It involves a statutory or regulatory
taking of a production right, not of legal title to the land
that the Petitioners own (other than through fore-
closures). They seek no monetary damages or relief.
The Petitioners seek only (a) a moratorium on farm
foreclosures, originally requested to be enforced by an
injunction, and (b) a declaratory judgment stating that
parity remains the overriding federal law of the land
regarding U.S. agriculture until Congress amends or
repeals the relevant statutes. They seek no new appro-
priations of funds for agricultural relief or support pro-
grams. In the courts, they seek no reallocation of
appropriated funds.
The moratorium on farm foreclosures, pending full
implementation of parity pricing principles or other pol-
icy actions amounting to renewed co-ordination aimed at
implementing the four-part scheme to restore orderly
marketing conditions in agriculture, is a form of relief
that the federal courts could grant. If there were ques-
tions regarding the authority of the federal courts to
order a moratorium affecting defendants who were not
represented in the case, then the relief could be confined
to only foreclosures arising from federally funded farm
mortgages (e.g., those issued by the Farm Credit System
or the Farmers Home Administration). The next broader
area of relief via moratorium, arguably still within the
circle of the federal courts’ jurisdiction, would affect all
farm mortgages that are federally insured or guaranteed
or issued by federally chartered institutions. This would
involve national banks and holders of federally insured
or guaranteed farm mortgages, for example.
The court of appeals expressed concern at oral argu-
ment about issuing an injunction that would affect
adversely persons not represented by attorneys from the
U.S. Department of Justice, and it is conceded that the
court’s concern might be well-taken. However, all feder-
ally funded farm mortgages ultimately flow through
either the Treasury or the Department of Agriculture or
12
both, and issuers and holders of federally insured or
guaranteed farm mortgages have been exposed to similar
debt restructurings since the 1986 rescue of the Farm
Credit Administration. The next outward ring of defen-
dants-respondents affected by a moratorium ordered by
the federal courts might be federally insured financial
institutions, regardless of chartering authority. Federally
insured banks, savings and loans, and credit unions are
used to filing reserve requirement reports with the Fed-
eral Reserve by virtue of their eligibility for federal
deposit insurance. A safe dividing line within this cate-
gory might be requiring all federally insured depository
and lending institutions to be subject to the moratorium
but exempting uninsured but eligible institutions.
Regarding a declaratory judgment on parity, the stat-
utory basis for such a declaration by the federal courts is
clear. Any new farm bill enacted by Congress next year
(the current farm bill, Freedom to Farm_Act of 1996,
expires in September 2002) must either put in place some
compensatory scheme in place of parity pricing princi-
ples, or the 1949 parity legislation will revert to being the
law of the land in agriculture. Compare 7 U.S.C. Section
1301 (a)(1)(E)-(G) (Pet. App. 30a-31a) with 7 U.S.C. Sec-
tion 7301 (Pet. App. 48a-51a). Current press reports (mid-
November 2001) indicate that both the House of Repre-
sentatives and the Senate will reject the reforms proposed
by the White House and the ranking minority member of
the Agriculture Committee, Senator Richard Lugar (R.-
Ind.), and will adopt instead a five-year farm bill (Senate
version) or a ten-year farm bill (House version) that
“places no limits on subsidies to America’s wealthiest
farmers and increases spending for conservation and
food stamps.” Elizabeth Becker, $88 Billion Farm Bill Wins
Approval of Senate Panel, N.Y. Times, Nov. 16, 2001, at
A-18. The federal courts are competent to grant the forms
of relief requested in the courts below.
13
2. Statement of the Appellate Case: Petitioners’ Case
for Review
The U.S. District Court for the District of Colorado
dismissed Petitioners’ complaint_as raising nonjusticiable
political questions and for requesting forms of relief, that
could not be granted (implicitly, as purportedly requiring
judicial invasions of areas of executive branch discretion
where the courts have given the executive broad leeway,
as in the conduct of foreign affairs). Following oral argu-
ment before a three-judge panel in Denver, Colorado, on
March 12, 2001, the Tenth Circuit affirmed, noting that
the Petitioners must seek relief for the issues raised in the
complaint (generally, the current plight of the small fam-
ily farmer) in the elected branches of government. Schro-
der v. Bush, 263 F.3d 1169, 1171-1172 (10th Cir. 2001) (Pet.
App. at 1a, 2a-5a). In addition, the Tenth Circuit found
that the Petitioners’ takings claim (U.S. Constitution,
Amends. 5 and 14, cl. 1, in Appendix at 20a-21a) failed,
having been presented inadequately on appeal, and also
that it was time-barred. 263 F.3d 1169, 1176-1177 (Pet.
App. at la, 14a-16a).
The court of appeals’ holdings merit this Court's
immediate review because each and every one of the
grievances cited in the Petitioners’ amended complaint
continues unabated and unrelieved to the present
moment (mid-November 2001). Left undisturbed, the
Tenth Circuit’s opinion will become a precedent for uni-
lateral, unreviewed, and unreviewable executive branch
conduct of foreign commercial or banking operations
(through the Treasury’s ESF), a power that the Constitu-
tion explicitly delegates to Congress alone (regulating the
value of foreign exchange). At risk is the principle that
the executive can do almost anything, almost anywhere,
no matter how thoroughly commercial, escaping both
judicial review and the checks and balances intended to
be provided through the annual or biennial appropria-
tions process, usurping the powers of Congress in the
process, as long as the executive plausibly can characterize
14
its activity as having anything at all to do with the conduct
of foreign affairs. Nondelegation principle issues of the type
discussed in Hampton and Whitman, supra, are raised
squarely in this case regarding both the foreign trade agree-
ments (OTR) and foreign exchange regulation (ESF) powers
and were briefed in both the district court and the Tenth
Circuit, but the Tenth Circuit did not reach these issues in its
opinion. See, e.g., Plaintiffs’ (Petitioners’) Appellate Brief
(10th Cir.) at 26-28, filed October 29, 2000.
The court of appeals’ holdings further merit this
Court’s immediate review because the Tenth Circuit’s
opinion will be added to the federal government's litany
of inapposite case citations on the proper interpretation
of the doctrine of nonjusticiability of political questions
and on the proper classification of cases falling within the
parameters of that doctrine. Most of the cases cited in the
government's briefs and in the Tenth Circuit’s opinion on
this point did not, in their holdings, reflect prudential
judicial abstention from affairs constitutionally confided
to the elective branches of government; in fact, in most of
those cases, including the granddaddies of them all, the
U.S. Supreme Court actually reached decisions on the
merits. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
Baker v. Carr, 369 U.S. 186 (1962). INS v. Chadha, 462 U.S.
919 (1983). The government’s argument, inferentially sus-
tained by the Tenth Circuit, is that if, within the decision
of a political question case, any rule of decision is cited
whatsoever that points toward “prudential abstention,”
then that reference overrides any contrary or stronger
reasoning process or rule by which this Court ultimately
found that it was required to reach a decision on the
merits and in fact did so. But that is exactly what hap-
pened in the leading cases just cited. The merits were
reached in each instance.
The court of appeals’ holdings merit. this Court’s
immediate review because the Tenth Circuit misconstrued
the nature of the relief sought, which never was for an
injunction of broader scope than the relevant court’s
jurisdiction would support (e.g., a moratorium on all farm
15
foreclosures within the territory of the Tenth Circuit). If
the Petitioners’ case succeeded, other plaintiffs in other
districts or circuits could file analogous petitions of their
own, if they wished, but the Petitioners did not ask any
federal court to overreach its own jurisdiction. Similarly,
the precise targets of such an injunction (i.e., all federally
funded farm mortgages vs. all federally insured or guar-
anteed farm mortgages vs. all farm mortgages from any
source) clearly were intended from the pleadings to be
whatever set of institutions would comport with the
court’s jurisdiction and the identity of the entities plausi-
bly said to have their interests in this litigation repre-
sented by the U.S. Department of Justice (a category that
clearly would include all federally funded farm mort-
gages and, probably, all federally insured or guaranteed
farm mortgages).
The court of appeals’ holding also merits this Court's
immediate review because it misconstrues Petitioners’
takings claim. Schroder v. Bush, 263 F.3d 1169, 1176-1177
(Pet. App. at la, 14a-16a). Ordinarily, a takings claim
involving a property rights interest receives heightened
scrutiny because of the fundamental nature of the life,
liberty, or, in this instance, property interest involved.
The Tenth Circuit apparently reasoned that property
rights claims nearly always state a claim for money dam-
ages or their equivalent, which emphatically was not the
case here. Monetary claims arising from property, the
Tenth Circuit apparently reasoned, must be filed under a
different set of federal jurisdictional statutes related to
the Tucker Act, 28 U.S.C. Section 1491 (Pet. App. at
63a-64a). Also, the Tenth Circuit found Petitioners’ tak-
ings claim time-barred under 28 U.S.C. Section 2401 (Pet.
App. at 65a). Finally, the Tenth Circuit might have been
led astray into the morass of Tucker Act cases by inap-
posite analogy to 28 U.S.C. Section 2409a (Pet. App. at
65a-67a), which deals with quiet title actions against the
United States and jurisdiction of other types of real prop-
erty claims where the matter at issue is actual legal title to
real estate. Instead, Petitioners’ case involves statutory or
16
regulatory actions precluding unfettered use and enjoy-
ment of real property interests, which is what AAA actu-
ally accomplished, instead of the actual nationalization of
all U.S. farm land, which some New Dealers allegedly
advocated. Upon inspection, the Tucker Act generally
applies to claims for monetary damages arising from tort
and contract claims against the United States. It is far
from clear that jurisdiction in the U.S. Court of Claims
under the Tucker Act would have been appropriate for
statutory and regulatory takings raising constitutional
issues (e.g., the nondelegation principle) and seeking no
monetary relief in this instance. Similarly, the statutes of
limitations prescribed in 28 U.S.C. Sections 2401 and
2409a (Pet. App. at 65a-67a) simply are inapplicable to
claims of the Petitioners’ types, which do not involve
federal tort or contract claims, or federal takings of actual
legal title to land (other than via mortgage foreclosures).
3. Note on Federal Jurisdiction
The bases cited for federal jurisdiction in the court of
first instance, here the U.S. District Court for the District
of Colorado, were 28 U.S.C. Section 1331 (Pet. App. at
63a) and 5 U.S.C. Section 702 (Pet. App. at 22a). The first
statute covers general federal questions. The factual basis
asserted for the Petitioners’ case is the failure of the four-
part compensatory scheme for the federal statutory and
regulatory taking of U.S. farmers’ production rights in
the AAA. The four-part scheme was intended to be the
“just compensation” that would save the constitutionality
of the taking. See, e.g., Arthur M. Schlesinger, Jr., The
Coming of the New Deal 35-36 (1959). See also, U.S. Consti-
tution, Amend. V (due process and takings clauses) (Pet.
App. at 20a) and Amend. XIV, Sec. 1 (privileges and
immunities and due process clauses) (Pet. App. at
20a-21a).
The second statute, 5 U.S.C. Section 702, confers
jurisdiction on the federal courts for claims requesting
17
declaratory or injunctive relief and not monetary dam-
ages (the precise forms of relief requested here) and
waives the federal government’s claim of sovereign
immunity in appropriate cases. At issue in the district
court (although not addressed in the Tenth Circuit’s opin-
ion) was the federal government's contention that the
first proviso of this statute denies jurisdiction if another
statute (i.., 31 U.S.C. Section 5302 (a)(2) [Pet. App. at
69a]) expressly precludes judicial review. Essentially, the
government’s argument was that the ESF’s governing
statute precludes judicial review by language stating that
decisions of the President and Secretary of the Treasury
in this area “may not be reviewed by any other officer or
employee of the Government.” Petitioners’ reply essen-
tially is to the effect that federal judges ordinarily are not
considered “officers or employees of the Government,”
which is language evoking the executive, not the judicial,
| branch of the federal government, and that preclusion of
judicial review is so extraordinary a constitutional step
that statutes of that nature should express judicial preclu-
“sion explicitly and not merely by implication.
The other principal jurisdictional argument in the
district court involved the propriety of Petitioners’ invo-
cation of 5 U.S.C. Section 702 (Pet. App. at 22a) regarding
either the President, who generally is held not to be the
head of an agency subject to judicial review under this
statute, or the heads of cabinet’departments (also claimed
not to be agencies subject to judicial review). Petitioners
conceded that jurisdiction over the President is difficult
and usually is reserved only for grand cases like Nixon v.
United States, 418 U.S. 683 (1974) (the presidential tapes
case), but Petitioners argued that, as Nixon shows, such
jurisdiction is not completely unknown. Also, Petitioners
contended that, with respect to cabinet departments
(Treasury and Agriculture) and agencies like the ESF and
OTR that predated the Administrative Procedure Act,
their official actions may be reviewed by the federal
courts and in fact are reviewed by the courts. In Youngs-
town Sheet & Tube Co. v. Sawyer (Steel Seizures case), 343
18
U.S. 579 (1952), for example, the named party defendant
in an injunctive action not unlike the present one was the
Secretary of Commerce, who was charged with imple-
menting the contested seizures of the struck steel com-
panies.
In any event, the Tenth Circuit decided the Peti-
tioners’ case on other grounds (especially the political
question doctrine) and did not reach a decision on the
narrow jurisdictional points. Inferentially, however, both
the district court and the Tenth Circuit might be viewed
as having found a sufficient statutory basis for jurisdic-
tion in this case because, unless Petitioners are pro-
foundly mistaken in this regard, a federal court ordinarily
would find that it has no statutory jurisdiction first,
before moving on to decide jurisdictional issues on
grounds like the political question doctrine. Indeed, Peti-
tioners have the impression that the political question
doctrine normally is couched in terms of refraining from
the exercise of jurisdiction that otherwise might attach
due to prudential concerns about impinging on decisions
properly conferred on the elected branches of govern-
ment. See, e.g., Alexander M. Bickel, The Least Dangerous
Branch 125-126, 184 (2d ed. 1986).
REASONS FOR GRANTING THE WRIT
The Petition for Certiorari should be granted for four
reasons initially suggested in the second numbered sub-
division of the Statement of the Case above. First, the
Tenth Circuit’s holding in the Petitioners’ case below
tends to confirm the executive branch in the unfortunate
and unconstitutional trend originally set in motion by
Justice Sutherland’s dictum in Curtiss-Wright that any
action arising from domestic economic activity, no matter
how purely and inherently domestic, may be regulated
and its product seized by the executive in pursuit of
allegedly foreign affairs goals, in which the executive
allegedly is supreme and unchallengeable. Under the
Curtiss-Wright doctrine, the President allegedly exercises
19
a “very delicate, plenary and exclusive power .. . as the
sole organ of the federal government in the field of interna-
tional relations.” (Emphasis added.) 299 U.S. 304, 320. A
second reason for granting the writ that is comprehended
within the first reason is the violation of the nondelegation
principle that is raised by the delegation of sole authority
over the operations of the ESF and the OTR to the execu-
tive branch, permanently in both cases, without an articu-
lated intelligible principle (ESF) or with an arguably
intelligible principle that is violated constantly without
consequences (OTR), and without congressional review
through the appropriations process (ESF), while the Con-
stitution explicitly delegates these operations to the legis-
lative branch alone (regulation of foreign exchange and
foreign commerce). See, Justice Thomas’s concurrence in
Whitman, 531 U.S. 457, 121 S.Ct. 903, 919-920 (Pet. App.
79a-80a).
The second overall reason for granting the writ is the
district court’s and Tenth Circuit’s misapplication of the
“prudential abstention” rules of the political question
doctrine to a case of the Petitioners’ type: Most of the
standard political question cases involve advocacy of
enactment of a particular policy approach where an
opposing or no policy apparatus already exists. But in
this case, Petitioners neither advocate that a new policy
be adopted nor ask the federal courts to legislate; rather,
they advocate that policies already declared be pursued
and that statutes already enacted be enforced. The four-
part compensatory scheme described in the first num-
bered subdivision of the Statement of the Case above is
not a mere legislative or policy proposal: It is emphat-
ically already the law of the land for U.S. agriculture, and
it is not being enforced. Thus, the standard form of politi-
cal question analysis is inapplicable to Petitioners’ case,
even ignoring the misinterpretations of what this Court
actually said and did in the standard litany of political
question cases: Marbury, 5 U.S. (1 Cranch) 137; Baker, 369
U.S. 186; Chadha, 462 U.S. 919; and progeny.
20
The third overall reason for granting the writ is the
district court’s and Tenth Circuit’s misinterpretation of
their capacities to grant the forms of relief requested, an
injunction against farm mortgage foreclosures and a
declaratory judgment to the effect that parity pricing
principles continue to be the underlying agricultural law
of the land. This Court’s upholding of farm mortgage
foreclosure moratoria is precedented. See, e.g., Home
Building & Loan Ass‘n v. Blaisdell, 290 U.S. 398 (1934)
(validation of a Minnesota state mortgage foreclosure
moratorium statute). Regarding the requested declaratory
judgment, this Court has issued rulings on the constitu-
tionality of AAA many times, generally sustaining it. See,
Butler v. United States, 297 U.S. 1 (1936) (processing tax
under AAA was invalid, but parity pricing principle itself
was not so far invalidated that Congress could not re-
enact AAA). But see, later cases in which the AAA
(including, parity itself) has been vindicated. Wickard v.
Filburn, 317 U.S. 111 (1942) (validity of AAA in intrastate
commerce). Parker v. Brown, 317 U.S. 341 (1943) (uphold-
ing validity of the so-called single plan for parity). Barlow
v. Collins, 397 U.S. 159 (1970) (Secretary of Agriculture’s
regulations affecting assignability of parity payments to
tenant farmers could be reviewed in the federal courts).
West Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 188-189
(1994) (various Massachusetts restrictions on out-of-state
milk were unconstitutional burdens on interstate com-
merce). Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S.
457, 461-462 (1997) (marketing ordrs for fruits and nuts
are still valid exercises of regulatory. authority under
AAA). Thus, there are ample precedents for both of the
requested forms of relief.
The fourth and final overall reason for granting the
writ is that the Tenth Circuit’s opinion misconstrues Peti-
tioners’ takings claim as a claim for money damages
(which it emphatically is not) and applies statutory anal-
ysis to the claim that would be appropriate only for tort
or contract claims under the Tucker Act and also applies
21
statutes of limitation to the claim that would be appropri-
ate only for actual governmental takings of legal title to
property. The taking in Petitioners’ case is a statutory or
regulatory taking of a subset of property rights regarding
use (production rights on the property) instead of an
actual taking of legal title. An apposite analogy is the line
of reasoning of this Court in Lucas v. South Carolina
Coastal Council, 505 U.S. 1003, 1019 (1992) (when the
owner of real property has been called upon to sacrifice
all economically beneficial uses in the name of the com-
mon good, he has suffered a taking). Brief explanation of
these four reasons for granting the writ follows.
I. The Decision Below Grants the Executive Branch
Unfettered Discretion to Regulate Domestic Eco-
nomic Activity in the Name of Foreign Affairs
A. Conduct of Foreign Affairs Impinges on Domes- |
tic Agricultural Economy
Justice Sutherland’s famous dictum in Curtiss-Wright,
299 U.S. 304, 320, regarding the President’s “very deli-
cate, plenary and exclusive power” in foreign affairs
should have been challenged more vigorously from the
outset in light of the prior tradition of shared respon-
sibility with Congress, at least regarding the making of
treaties. U.S. Constitution, Art. II, Sec. 2, cl. 2 (Pet. App.
at 20a) (treaties require the concurrence of two-thirds of
the Senate). To the extent that modern cases have built on
this dictum, they have created a situation in which the
executive branch increasingly and solely makes economic
policy decisions affecting domestic economic activity,
which normally would be outside the scope of foreign
affairs. In this instance, decisions of the executive affect-
ing both prices paid and prices received by U.S. farmers,
principally implemented through the Treasury and the
Department of Agriculture, but to a significant extent
through the OTR also, have been raised by the federal
government'’s briefs to the unquestionable status of holy
writ: Unfortunately, the Tenth Circuit, while apparently
ve tl
22
sympathetic to the plight of small family farmers, has
elected not to question the nexus between the executive’s
conduct of foreign affairs and the prices paid and
received by farmers. This issue was briefed fully for the
courts below: The United States has pursued a bifurcated
policy since about 1995 in which the interests of domestic
farmers are deliberately sacrificed for larger foreign pol-
icy goals, sometimes disguised as the liberalization of
international trade, which this bifurcated policy is not.
On one hand, open-market operations of the Federal
Reserve Banks, conducted through the Federal Open
Market Committee, have led to an increase of the U.S.
dollar index quoted on the New York Board of Trade and
daily in the financial sections of major newspapers, a
rough proxy for the foreign exchange value of the dollar,
from about 95 in 1995, roughly the beginning of the
current phase of U.S. farmers’ economic difficulties, to
about 116 in mid-November 2001. That index was already
above 100 (1973 is the base year) in 1999, when the
Petitioners sent a notice of the causes of their complaint
to the relevant federal departments and agencies, includ-
ing the Executive Office of the President. By March 2001,
the time of oral argument in this case in the Tenth Circuit,
the index stood at 112. On the Federal Reserve’s role, see
12 U.S.C. Sections 225a, 241, and 355 (Pet. App. at
51a-54a). In briefs below, the government has contended
that the President is the federal official ultimately respon-
sible for the nation’s monetary policy, which is not
entirely correct respecting the Federal Reserve’s role in
domestic monetary policy but might be correct (stat-
utorily, even if not constitutionally) respecting the foreign
exchange value of the dollar, at least since 1934.
On the other hand, since 1995, the Treasury, operat-
ing through the ESF (which it totally controls) and the
IMF (in which it holds an 18 percent blocking veto, or de
facto control), has extended tens of billions of dollars of
bailout funds to foreign countries devaluing their curren-
cies as a condition of obtaining the IMF's assistance.
Several of those countries are direct competitors of U.S.
23
farmers, including Mexico (fruits, vegetables, and cattle),
Argentina (corn, wheat, sheep, and cattle), Brazil (soy-
beans and cattle), and Turkey (wheat). Other countries
have had major currency devaluations but without ESF or
IMF assistance, including Canada (wheat) and Australia
(sheep, wheat, corn, and cattle). The use of the Treasury’s
funds to assist these countries amounts to forcing U.S.
farmers to subsidize their biggest foreign competitors.
Also, the OTR has negotiated major trade agreements
since 1993 with several countries with similar competitive
profiles: Chile (fruits and vegetables), Colombia (fruits
and cut flowers), and Mexico (see above). In these
instances, tariff barriers against foreign food and fiber
imports into the United States are reduced, but the dollar
appreciation offsets any advantage that U.S. producers
might expect to obtain from being able to export to the
other country. Thus, foreign affairs intrude into the.
domestic U.S. agricultural economy.
B. The Nondelegation Principle Is Violated
The statutory delegations of sole conduct of the oper-
ations of the ESF and the OTR to the executive branch
violate the general principles of separation of powers and
specific constitutional provisions. The Constitution, Art.
I, Sec. 8, cl. 5 (Pet. App. at 19a), delegates the regulation
of foreign exchange, implicitly treating it as a commercial
activity, to Congress, not the executive. The regulation of
foreign trade (Art. I, Sec. 8, cl. 3, in Appendix at 19a) also
is delegated to Congress in the same clause that delegates
the regulation of domestic trade. It is an overreaching of
executive branch power to treat these matters as exclu-
sively executive and somehow falling under the rubric of
the general executive power, as the government con-
tended in the courts below. See, U.S. Constitution, Art. II,
See. 3, 4.1.
Both instances, foreign exchange and foreign trade,
involve matters that are inherently legislative and that
24
become executive only by legislative acquiescence. Unfor-
tunately, that acquiescence frequently occurs. To be tradi-
tionally constitutional, these delegations should require
an initial reporting line of responsibility to Congress, not
to the executive, periodic appropriations (this is done for
the OTR but not for the ESF), and either a predetermined
cessation date or a procedure by which Congress could
reclaim these powers. However, these functions are dele-
gated permanently to the ESF and OTR, with inadequate
standards of accountability and review to Congress, and
outside the appropriations process for the ESF. The for-
eign affairs power should not include commercial powers
that constitutionally belong to Congress instead. See gen-
erally, Harold Hongju Koh, The National Security Constitu-
tion: Sharing Power After the Iran-Contra Affair (1990),
especially at 38-100, 134-149. See also, Richard H. Fallon,
Jr., Daniel J. Meltzer, and David L. Shapiro, Hart &
Wechsler’s The Federal Courts and the Federal System 289-293
(4th ed. 1996) (hereinafter Hart & Wechsler). Both Koh and
Hart & Wechsler are properly critical of the general judi-
cial acquiescence in the executive’s power grab for con-
trol of foreign commercial matters under the rubric of
foreign affairs, an expansion of the Curtiss-Wright doc-
trine.2 The gist of these citations from Koh and Hart &
Wechsler, and the cases discussed there is clearly antithe-
tical to the citations relied upon in the Tenth Circuit’s
opinion on these points, Schroder v. Bush, 263 F.3d 1169,
1174-1176. See, e.g., Goldwater v. Carter, 444 U.S. 996 (1979)
(Justice Rehnquist ruled on the merits that the president
—
3 Koh writes, supra, at 94:
Among government attorneys, Justice Sutherland’s
lavish description of the president’s powers is so
often quoted that it has come to be known as the
“ ‘Curtiss-Wright, so I'm right,’ cite” — a statement of
deference to the president so sweeping as to be
worthy of frequent citation in any government
foreign affairs brief.
25
could not terminate a treaty already approved by Con-
gress); Japan Whaling Ass'n v. American Cetacean Society,
478 U.S. 221 (1986) (Supreme Court reviewed on the
merits Secretary of Commerce’s decision in a Japanese
whaling case allegedly having a delicate posture for
Japan-U.S. foreign relations).
Koh, supra, at 148, summarizes the argument for
granting the writ of certiorari on this first point as fol-
lows:
[T]he trend toward executive insulation from
judicial review in foreign affairs is a relatively
recent development, which finds little support
in our constitutional traditions. Since the found-
ing of the National Security Constitution [1947],
the courts have played a pivotal role in main-
taining the constitutional equilibrium of the
national security system: That role has required
judges to police the boundaries of the branches’
authority in foreign affairs to maintain the con-
stitutional principle of balanced institutional
participation. Particularly when Congress legis-
lates a framework statute governing executive
decisions, those decisions should remain fully
subject to judicial review. Thus, the recent for-
eign-affairs cases in which courts have abs-
tained from such review ultimately betray not
doctrinal fidelity, but reflexive timidity.
Finally, on this first reason for granting the writ, the
permanent delegation to the executive of legislative
branch powers textually committed to Congress, com-
bined with inadequate or no articulated standards of
review of executive branch action (ESF) or minimally
articulated standards that apparently are consistently
ignored (OTR) raises all the issues that Justice Thomas
mentioned in Whitman, citing Hampton, 531 U.S. 457, 121
S.Ct. 903, 919-920 (Pet. App. at 79a-80a); 276 U.S. 394, 409.
If this Court ever wished to deal with the clearest exam-
ple of breach of the nondelegation doctrine, the Peti-
tioners’ case presents such an example.
26
II. Prudential Abstention Principles Said to Be
Embedded Within the Nonjusticiable Political
Question Doctrine Prove on Closer Inspection to Be
Inapplicable to Petitioners’ Case, but Tenth Circuit
Will Buttress Other Misled Circuits on This Issue
The lower courts have misapplied the principle of
prudential abstention and the doctrine of nonjusticiable
political questions in Petitioners’ case. See, Schroder v.
Bush, 263 F.3d 1163, 1173-1176. First, the standard politi-
cal question doctrine as articulated in the government's
briefs and in the Tenth Circuit’s opinion implies that
contestants are merely seeking relief in a judicial forum
that, because of conflicting interests with other members
of society, contestants should seek in a political forum
instead, through one or more of the elected branches of
government. In fact, Petitioners have sought and continue
to seek political relief for the plight of U.S. farmers,
including themselves, but they also seek enforcement of
policies already decided upon and statutes already
enacted. Parity and the four-part compensatory scheme
already have been enacted .— Petitioners have nothing to
advocate in the legislative branch except commissions of
inquiry to find out why the standing policy has not been
implemented. Thus, the interests ordinarily served by a
policy of prudential judicial abstention are absent here.
Regarding the misinterpretation and misapplication
of the political question doctrine generally, critics of the
doctrine observe that, in fact, this Court usually has
actually reached the merits of the cases most often cited
in favor of abstention. In Marbury, Baker, and Chadha, the
Court decided the cases on the merits. 5 U.S. (1 Cranch)
137; 369 U.S. 186; 462 U.S. 919. Koh observes, supra, at
135, that throughout the early development of modern
national security practices, this Court almost always
reached the merits of the cases. This aspect began to
change only with the issuance of dicta in Chicago & S. Air
Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948),
asserting the nonreviewability of executive branch foreign
27
affairs matters, one year into the Cold War. But the contrary
principle (presumption in favor of reviewability) persisted
through Youngstown, 343 U.S. 579 (1952), suffering a severe
setback only when Dames & Moore v. Regan was decided. 453
U.S. 654 (1981). Despite the obvious foreign affairs connec-
tion in Dames & Moore (regarding U.S. claims on Iran during
the hostage seizures), this Court reached the merits and
found that Congress had acquiesced so fully as to be deemed
to have approved the President’s actions there under the
International Emergency Economic Powers Act (IEEPA). 50
U.S.C. Sections 1701-1706 (Pet. App. at 71a-78a). By the time
Chadha was reached, supra, this Court still decided the case
on the merits but basically prohibited Congress from exercis-
ing legislative control over various aspects of the President's
control of foreign affairs. The important principle to be
observed here is that the federal courts should entertain the
Petitioners’ case on the merits and should not decline to hear .
it on some mistaken notion that the merits never are reached
in foreign affairs cases. On the contrary: Such cases fre-
quently (perhaps usually) reach the merits, and this Court
needs to say so to prevent the Ninth, Tenth, Eleventh, and
D.C. Circuits from persisting in ruling that such cases should
not reach the merits. See, Schroder v. Bush, 263 F.3d 1169,
1173-1176.
III. This Court Can and Should Grant the Forms of Relief
Requested
This Court clearly has the capacity to issue an injunction
prohibiting farm foreclosures, at least in the territory of the
Tenth Circuit where all Petitioners reside, until the executive
and legislative branches certify to the Court that they have
reached a common position on farm foreclosures in light of
other policies that Congress has approved and that the Exec-
utive Branch has implemented. Basically if in 1996 the pro-
duction controls of AAA were lifted from U.S. agriculture
under the Freedom to Farm Act, which largely was a con-
gressional decision, it then made little or no sense for the
Treasury (ESF) to undo the market competitiveness of U.S.
28
farmers by subsidizing imports of grains and other covered
commodities and crops. Even if the ESF effected no such
subsidy directly itself, the net effect of the Treasury's foreign
exchange policies since 1995 has been to cheapen the price of
imported goods and services and to drive up the dollar’s
value.
The unreconciled division of agricultural policy between
Congress (running fast to fill the hole in domestic agri-
cultural payments that executive branch policies have cre-
ated) and the executive means that the ills of which
Petitioners initially complained formally in 1999 will con-
tinue for the indefinite future. Under precedents such as
Blaisdell, supra, 290 U.S. 398, this Court may validate mort-
gage foreclosure moratoria. Under precedents like Parker, 317
U.S. 341, this Court also may issue a declaratory judgment to
the effect that parity is the law of the land, as well. The forms
of relief requested below are within the capacity of this
Court to grant.
IV. The Tenth Circuit Has Misconstrued Petitioners’ Tak-
‘ ings Claim, Which Is a Statutory or Regulatory Tak-
ings Claim Analogous to the Lucas Case
Perhaps led to this conclusion by the government's
briefs, the Tenth Circuit’s opinion misconstrues Petitioners’
takings claims (5th and 14th Amendments) as claims for
money damages, when they are in fact claims for injunctive
and declaratory relief only. The statutes and cases cited
apparently reflected a desire on the part of the Tenth Circuit
for a more elaborate development of a takings argument in
the case below. See, Schroder v. Bush, 263 F.3d 1169, 1176-1177.
But, as was noted at oral argument in the Tenth Circuit, there
never was a hearing in the district court, and, thus, only
issues raised by the government were briefed responsively
by Petitioners.
The Tenth Circuit noted that Petitioners’ amended com-
plaint contained references to the nature of the case as a
takings claim at 6, 25-26. On appeal, Petitioners concentrated
their energies in overcoming the district court’s dismissal on
29
political question grounds and for failure to state a claim on
which relief could be granted, there being no comment on
the takings claim in the district court’s opinion.
From the inception of the case, as the first numbered
subdivision of the statement of the case above makes plain,
Petitioners never argued that legal title to their property has
been taken by the government. Rather, it was argued,
throughout most of the AAA era, farmers’ production rights
(a distinctive form of property right) have been taken.
Regardless of how the taking occurred, it was supposed to
be compensated, and there was a failure of compensation.
The compensation was an elaborate, four-part scheme
designed to restore orderly marketing conditions in agricul-
ture, no part of which currently is being implemented as
originally intended.
Because of the complexity of the compensation plan,
Petitioners have always found in their public appearances .
that it was more important to explain the four-part compen-
sation scheme under AAA than to explain the taking of
farmers’ property rights (emphasis on the compensation
rather than on the taking). After all, it was argued, AAA, 7
U.S.C. Section 601 (Pet. App. at 25a), constituted the taking:
The executive and legislative proclamation of a national
emergency in agriculture and the impressment of agriculture
with the national interest. What was taken then was farmers’
production rights, thenceforth to be regulated closely by the
federal government.
This Court has held that the taking of the right to use
real property as one sees fit, especially for productive use, is
nevertheless a taking even if legal title does not pass to the
government. Lucas v. South Carolina Coastal Council, 505 U.S.
1003, 1019 (1992). The sacrifice of economically beneficial
uses to the common good constitutes a taking. That is exactly
what befell U.S. agriculture on May 12, 1933: Nearly all
economically beneficial use according to one’s predilections
in agriculture ground rapidly to a halt.
This Court’s decision in Wickard v. Filburn, 317 U.S.
111 (1942), signaled that there was nearly no end to the
30
level of federal interference in minutely local agricultural
practices.
On its face, it appears that it would be impossible to
fit the taking in Petitioners’ case into the classic rubric of
a tort or contract claim under the Tucker Act or a quiet
title or other title action under 28 U.S.C. Sections 2401
and 2409a (Pet. App. at 65a-67a). The statutes of limita-
tions for such claims are irrelevant to Petitioners’ case.
Instead, Petitioners are stating an equitable claim for
equitable relief. Where the wrong alleged is a constitu-
tional violation (a taking in which there has been failure
of agreed compensation - there is no parity, even though
it is the law of the land) the request for equitable relief
may be stated even decades after the onset of the taking if
the lesson in McCulloch v. Maryland, 17 U.S. (4 Wheat.)
316 (1819), were taken literally: “It will not be denied,
that a bold and daring usurpation might be resisted, after
an acquiescence still longer and more complete than
this.” The constitutionality of the Bank of the United
States had been in issue since its founding in 1791. Yet, 28
years after the fact, Chief Justice Marshall was willing to
deal with the Bank’s constitutionality as though it were
freshly brought to his attention.
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
WALKER F. Topp
Counsel of Record
Attorney at Law
1164 Sheerbrook Drive
Chagrin Falls, Ohio 44022
(440) 338-1169
Attorney for Petitioners
TABLE OF CONTENTS OF APPENDIX
PAGE(S)
Copy of Order Appealed From: Opinion of the
United States Court of Appeals for the Tenth
Circuit Decided and Filed August 24, 2001, Pub-
lished as Schroder v. Bush, 263 F.3d 1169 (10th
CO BOGE) have etac eben viees Cicdeesetcccedencetees la
Copy of Order Appealed to Tenth Circuit: Order
of the United States District Court for the Dis-
trict of Colorado Dated and Filed July 6, 2000,
Unpublished .........cccccccescrevccccccvsvccces 17a
PROVISIONS OF U.S. CONSTITUTION CITED
OO errr rr rer rere Seevesenneuss 19a .
Se es Fe is, Bec Sa und a pdaeucidenensadenenteeees 19a
Pe EO. Bs A ccicccswesiecscenkeceseveceunsees 19a
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es ee ods ced ce VEGU MU awe tebe bceeseeens 19a
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Art. II, sec. 2, Cl. 2... .++eeeeeeeeereee beeviewiwseed 20a
ee aap haw are wet needesbesssere 20a
AMENDMENTS TO U.S. CONSTITUTION CITED
Amend. V (due process and takings clauses)....... 20a
er ec eee cence s eeee es 20a
ii
TABLE OF CONTENTS OF APPENDIX - Continued
PAGE(S)
U.S. STATUTES CITED
5 UBC. Gertie TOs oo ccccccciccesectovecnccescvces 22a
FT UBL. Gecthath Zl c ccccccccvevsccssscovsvaveacenvs 22a
7 USE. Geetha Fae o ccccccccvcsoscscesescsseccecess 23a
7 PEGE. Geethees GE o ccccccccsccceccsossvvnevsssees 25a
7 U.S.C. Section 602 ...........- pacdcadbabacdwelens 26a
7 USE. Gartiam GIB occ cccccecevcsesevecvesessceses 28a
7 USC. Saction 1901 ..cvccrcvccscesvecvecccesevess 29a
7 USGL. Gertie 1GGD «co cvcccccvesscvcevcescrvcseses 45a
7 USGL. Section SO71 .cccccccsccsvccsccscccceveeses 46a
7 USK. Geetha TOE occvccccsvscccdenssvecaveveses 48a
12 USC. Sectiom ZAG oc ceccsccvceccccccescceceses 5la
12 USC. Sectiom BE .. evcccvevercccceveccscvecseses 52a
12 US.C. Section BSS .occccccccsccesccsescevesesees 52a
15 UBC. Sortie Fo. ccccccsccdvcvcevesecesvcsececs 54a
15 UBC. Sarthe 1B. occcccccccecsvcavcccsscetuenss 54a
15 USG.C. Sectlom 1OZZc .. .ccccccvcvcccesccccccvcves 57a
19 USC. Gectiom 1501 ..cccccccescccsccncvcccvceses 58a
2B USC. Soatiem Tbe cccoccecccccccvessveserseves 62a
2B USL. Gectiom 15GB cc ccc cccceTeccccesseccssnees 63a
25 USGL. Be BEE ccc cccscvvcccvccecsvvsccsvese 63a
28 UGC. Gestion BOGE occcivccccncccccceviseceesess 65a
28 U.S.C. Section BAGIR . .cccccccvescsiccsccescesess 65a
iii
TABLE OF CONTENTS OF APPENDIX - Continued
PAGE(S)
31 US.C. Section S301 .......cccccccccccevccsecvess 67a
31 U.S.C. Section 5302 ..........cceeecceeeeceeenees 69a
31 U.S.C. Section 5304 ....cccccccccccscccesesecvess 7la
50 U.S.C. Section 1701 ......... cee ceece reece cceens 71la
50 U.S.C. Section 1702 ..........cecceccceeccseceees 72a
50 U.S.C. Section 1703 .......... eee eee e ec eeeeees 75a
50 U-S.C. Section 1704 .........cceccccccceecccvcees 76a
50 U.S.C. Section 1706 ......... cece cece cece eeceees 77a
Concurring Opinion of Justice Thomas in Whitman
o. Amer. Trucking Ass'n, Inc., 531 U.S. 457, 121
SOs GED COG)... cccccccccccsssvcsevevcesscovees 79a
la
United States Court of Appeals,
Tenth Circuit.
Eugene SCHRODER; Edwin Petrowsky;
R. Russell Grider; and Wesley Myers,
Plaintiffs-Appellants,
V.
George W. BUSH, President of the United States;
Ann M. Veneman, United States Secretary of Agriculture;
Paul H. O'Neill, United States Secretary of the Treasury;*
and United States of America, Defendants-Appellees.
No. 00-1357.
Aug. 24, 2001.
Walker Fowler Todd, Chagrin Falls, OH, for Plaintiffs-
Appellants.
Peter J. Krumholz, Assistant United States Attorney
(Thomas L. Strickland, United States Attorney, with him on
the brief), Denver, CO, for Defendants-Appellees.
Before EBEL, Circuit Judge, McWILLIAMS, Senior
Circuit Judge, and BRIMMER,”** District Judge.
EBEL, Circuit Judge.
* Pursuant to Fed. R.App. P. 43(c)(2), George W. Bush is
substituted for William J. Clinton, President of the United
States; Ann M. Veneman is substituted for Daniel R. Glickman,
United States Secretary of Agriculture; and Paul H. O’Neill is
substituted for Lawrence Summers, United States Secretary of
the Treasury, as Defendants Appellees in this action.
** The Honorable Clarence A. Brimmer, Jr., United States
District Judge for the District of Wyoming, sitting by
designation.
2a
Appellants are farmers or ranchers who live and
work within the territorial boundaries of the Tenth Cir-
cuit and who seek declaratory and injunctive relief
against the President of the United States, the United
States Secretary of Agriculture, the United States Secre-
tary of the Treasury, and the United States of America
(collectively, “Appellees”). Appellants seek, in essence,
an order requiring Appellees and their agents to maintain
market conditions favorable to small farmers. The district
court dismissed for lack of subject matter jurisdiction,
writing, “The Complaint seeks to have this court deter-
mine political questions which are properly addressed
[by] the elected branches of the government. This Court
has no jurisdiction over the discretionary acts of either.
Plaintiffs’ remedies are at the polling place, not the
courts.” Schroder v. Clinton, No. 00-CV-154 K (D.Colo. July
6, 2000) (hereinafter “D.Ct. Order”). We agree that Appel-
lants ask us to consider nonjusticiable political questions
and that Appellants must seek relief from the elected
branches of government. We therefore AFFIRM the dis-
trict court’s dismissal.}
1 Deeply rooted ambiguity in the nature and justification of
the political question doctrine has prevented clear classification
of the appropriate type of dismissal in political question cases.
See Wright, Miller & Cooper, Federal Practice and Procedure:
Jurisdiction 2d § 3534.3, at 517-525 (2d ed. 1984) We agree with
Wright & Miller’s conclusion that, in the end, clear classification
is immaterial: “[TJhere is probably more room for confusion
than benefit in attempting to analogize [political question
dismissal] to dismissal for failure to state a claim, or to dismissal
for lack of jurisdiction. Some cases will be appropriate for
dismissal on the pleadings, others will require further
development... .” Id. at 525; cf. Daniel O. Bernstine, The Political
3a
BACKGROUND
A. Plight of the Small Farmer in America
Every branch of the federal government has recog-
nized how difficult it is for small farmers to make a living
by farming.? See William J. Clinton, State of the Union
Address of January 27, 2000, reprinted in 2000
U.S.C.C.A.N. D7, 2000 WL 85684, *11 (“[D]roughts,
floods, and historically low prices have made these times
very bad for the [family] farmers.”); S.J. Res. 171, 103rd
Cong. (1994) (1994) (joint proclamation of “Small Family
Farm Week”) (stating “the plight of the small family
farmer has been in jeopardy in recent times [and] many
small family farms continue to operate in the face of
financial and credit difficulties”); Mulroy v. Block, 574
F.Supp. 194, 195-96 (N.D.N.Y.1983) (“[I]n a time when this
nation is experiencing the decline and threatened extinc-
tion of the individual farmer, it is particularly disturbing
to see legislation such as this which will undoubtedly
have a devastating effect on the small scale dairy farmers
of this nation.”); In re Moeller, No. 90-35017, 1990 WL
208617, at *1 (9th Cir. Dec.14, 1990) (“Appellants made
Question Doctrine: A Perspective on its Procedural Ramifications, 31
U. Kan. L.Rev. 115, 129-30 (1982) (concluding that dismissal for
subject matter jurisdiction is appropriate if the claims fall within
an established category of political questions or are frivolous,
but that, otherwise, dismissal for failure to state a claim is
appropriate).
2 Indeed, three of the four Appellants have other jobs
besides farming: Schroder is also a veterinarian; Petrowsky is
also a nuclear engineer and aerial photographer; and Myers has
also been a county sheriff.
4a
spirited arguments before this court regarding the plight
of family farmers who have successfully farmed the same
land for generations. We sympathize with their con-
cerns.”). In a similar case from 1988, we acknowledged
our awareness of “the serious plight of the family farmer
in America. We sympathize with farmers struggling to
secure their livelihoods and, more fundamentally per-
haps, maintain their way of life.” Schroder v. Volcker, 864
F.2d 97, 99 (10th Cir.1988).° A 1998 report from the United
States Department of Agriculture demonstrates that,
more than a decade after Schroder, times are still hard for
small farmers in America: “Today, we have 300,000 fewer
farmers than in 1979, and farmers are receiving 13 per-
cent less for every consumer dollar. Four firms now con-
trol over 80 percent of the beef market. About 94 percent
of the Nation’s farms are small farms, but they receive
only 41 percent of all farm receipts.” Nat. Comm’n on
Small Farms, U.S. Dep’t of Agric., A Time to Act: A Report
of the USDA National Commission on Small Farms, at 8
(Jan.1998).
We remain sympathetic to the plight of the small
farmer, but we also remain in agreement with the judg-
ment of both the district court in this case and the Schro-
der court thirteen years ago: “[W]e believe the issues
3 Despite the superficial similarities in Schroder v. Volcker
and Schroder v. Volcker of name and kind of case, see 864 F.2d at
98 (“Plaintiffs’ claims constitute a broad scale attack against the
agricultural credit system in particular, and the American
banking and economic systems in general.”), the two cases do
not seem related. Appellants’ first names in Schroder v. Volcker
were Derral and Gladys, while the Schroder in this case is
named Eugene.
.
5a
raised by plaintiffs in this suit are basically political ques-
tions which must be resolved in the legislative arena.”
Schroder, 864 F.2d at 99.4
B. Relief Sought by Appellants
Appellants - Eugere Schroder from Campo, Colo-
rado; Edwin Petrowsky from Pratt, Kansas; R. Russell
Grider from Clovis, New Mexico; and Wesley Myers from
Clovis, New Mexico - sought “a moratorium on farm
foreclosures® and an order requiring the President, Secre-
tary of the Treasury, Secretary of Agriculture, and their
agents to control United States currency and to maintain
market conditions so as to be favorable to American
farmers.” They admitted that controlling currency and
maintaining favorable market conditions “would require
4 Appellants acknowledge that they have sought relief via
political channels. Despite their initial lack of success, we
believe our constitutional system requires that they stay that
course.
5 In their Complaint, Appellants sought a moratorium on
“all agricultural foreclosures and forced sales caused by lack of
purchasing power parity.” On appeal, however, they refined
this prayer for relief to “a moratorium on federally funded farm
foreclosures.” We find the addition of no import, but even if we
did, generally we will not consider new theories on appeal. See
Okland Oil Co. v. Conoco Inc., 144 F.3d 1308, 1314 n. 4 (10th
Cir.1998). This observation - that we generally refuse to
consider new theories on appeal - applies with equal force to
the other minor changes Appellants made to their request for
relief on appeal. Because their requested relief, regardless of
whether they requested it in their Complaint or Opening Brief,
fits squarely within the political question doctrine, we do not
labor over the discrepancies.
6a
congressional or judicial review of agricultural product
and marketing controls, bilateral trade agreements that
affect U.S. agriculture, the activities of the Exchange Sta-
bilization Fund, and enforcement of the anti-trust laws by
the U.S. Department of Justice with respect to corporate
competitors of family farmers. ... ” They sought a
permanent injunction “requiring the Secretary of the
Treasury and the U.S. Trade Representative . . . of the
President to work together and cooperate in negotiating
and implementing foreign trade agreements” that would
benefit small farmers.
Appellants alleged that a national emergency in Agri-
culture was declared “on May 12, 1933, and has yet to be
terminated 66 years later,” and requested a declaratory
judgment that “the state of National Emergency declared
by Congressional Statute in 1933 still exists.” They also
demanded declaratory judgments that “sub-par agri-
cultural commodity prices shall be allowed as an affirma-
tive defense in any action for debt” and that “the event of
the commonly quoted U.S. dollar index . . . rising above
95 shall be allowed as an affirmative defense or as a basis
for a stay of proceedings for foreclosure [against any
individual, non-corporate U.S. farmer].”°
6 In addition, Appellants sought “a declaratory judgment
that parity pricing principles are the law of the land.” To
support this claim, they rely on the Agricultural Adjustment Act
(“AAA”) of 1933. The Senate Report from the Food, Agriculture,
Conservation, and Trade Act of 1990, however, explains that the
Supreme Court invalidated the production control provisions of
the 1933 Act, [so] Congress passed a second Agricultural
Adjustment Act in 1938. . . . The Agricultural Act of 1949
amended the 1938 Act to establish a permanent authority for
7a
S. Rep. No. 101-357, at 43-45 (1990). Thus, Appellants’
reliance on the 1933 AAA is misplaced. Furthermore, as
the Senate Report explained, over the years Congress has
enacted successive suspensions of the alleged parity pric-
ing requirement. Indeed, Appellants seem to acknowl-
edge that the AAA of 1933 affords them no legal relief. At
various points in their briefs Appellants complain about
how Congress has enacted “conflicting” legislation that
has permitted the Executive Branch to “pursue[ ] other
policies antithetical to parity pricing principles.”
Last, they contended the federal government has
effected a taking without paying just compensation in
violation of the Fifth Amendment.
DISCUSSION
A. The Political Question Doctrine
After reviewing Appellants’ prayer for relief, we are
convinced that the district court was correct to dismiss
Appellants’ claims as nonjusticiable political questions.
Since it is a legal question, we review de novo the appli-
cation of the political question doctrine. See Stuart v.
United States, 813 F.2d 243, 246 (9th Cir.1987), overruled on
other grounds by United States v. Stuart, 489 U.S. 353, 109
S.Ct. 1183, 103 L.Ed.2d 388 (1989).
parity-based price supports. However, since 1973, Congress has
amended the 1949 Act regularly with legislation that expires
after 4 or 5 years. Farm programs under these expiring
authorities have become quite different from the parity-based
programs of the 1930's and 1940's.
8a
Prudence, as well as separation-of-powers concerns,
counsels courts to decline to hear “political questions.”
See Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d
663 (1962); Nixon v. United States, 506 U.S. 224, 252-53, 113
S.Ct. 732, 122 L.Ed.2d 1 (1993) (Souter, J., concurring in
the judgment); Alexander M. Bickel, The Least Dangerous
Branch 125-26, 184 (2d ed.1986).7 When deciding whether
issues present political questions, courts must make a
“discriminating inquiry into the precise facts and posture
of the particular case,” for it resists “resolution by any
semantic cataloguing.” Baker, 369 U.S. at 217, 82 S.Ct. 691.
As “there is no blanket rule,” id. at 215, 82 S.Ct. 691,
application of the doctrine must be made on a “case-by-
case” basis, id. at 211, 82 S.Ct. 691.
The tangled roots of the political question doctrine
stretch back ‘to Marbury v. Madison, 5 U.S. (1 Cranch) 137,
2 L.Ed. 60 (1803). See id. at 170 (“Questions, in their
nature political, or which are, by the constitution and
laws, submitted to the executive, can never be made in
this court.”); see also generally id. at 164-66. The most
thorough explication of the doctrine was provided in
Baker v. Carr, in which the Supreme Court gathered the
doctrine’s “analytical threads.” 369 U.S. at 211, 82 S.Ct.
691. It wrote, in this well-known passage,
7 To resolve this case we need not explore the
underpinnings of the doctrine. We merely note that “it is
uncertain whether the political question doctrine is
constitutional, prudential, or both.” Erwin Chemerinsky, Federal
Jurisdiction § 2.6, at 149 (3d ed.1999).
9a
Prominent on the surface of any case held to
involve a political question is found [1] a tex-
tually demonstrable constitutional commitment
of the issue to a coordinate political department;
or [2] a lack of judicially discoverable and man-
ageable standards for resolving it; or [3] the
impossibility of deciding without an initial pol-
icy determination of a kind clearly for nonjudi-
cial discretion; or [4] the impossibility of a
court’s undertaking independent resolution
without expressing lack of the respect due coor-
dinate branches of government; or [5] an
unusual need for unquestioning adherence to a
political decision already made; or [6] the poten-
tiality of embarrassment from multifarious pro-
nouncements by various departments on one
question.
Id. at 217, 82 S.Ct. 691.
We have no doubt that this case presents textbook
examples of political questions and thus that it was prop-
erly dismissed by the district court. The Constitution
commits to Congress the regulation of domestic and for-
eign commerce, see U.S. Const. art. L, § 8, cl.3, the estab-
lishment of bankruptcy law, see id. cl.4, and the regulation
of currency, see id. cl.5. To the President, the Constitution
commits the “Power, by and with the Advice and Consent
of the Senate, to make Treaties.” U.S. Const. art. II, § 2,
cl.2. “The Constitution confers a vast amount of power
upon the political branches of the federal government in
the area of foreign policy - particularly foreign com-
merce.” Made in the USA Foundation v. United States, 242
F.3d 1300, 1313 (11th Cir.2001) (gathering constitutional
provisions and Supreme Court cases). The Supreme Court
has recognized that “the President alone has the power to
10a
speak or listen as a representative of- the nation. He
makes treaties with the advice and consent of the Senate;
but he alone negotiates.” United States v. Curtiss-Wright
Export Corp., 299 U.S. 304, 319, 57 S.Ct. 216, 81 L.Ed. 255
(1936). “While the treaty power of the Executive
expressly involves the participation of the Legislature,
nowhere does the Constitution contemplate the participa-
tion by the third, non-political branch, that is the Judici-
ary, in any fashion in the making of international
agreements... . “ Antolok v. United States, 873 F.2d 369,
381 (D.C.Cir.1989) (opinion of Sentelle, J.). Besides this
evidence of a textual commitment to the political
branches of the regulation of domestic and foreign mar-
kets and currency, as well as the enactment of treaties and
trade agreements, it is clear to us that Appellants’ request
that courts maintain market conditions, oversee trade
agreements, and control currency - all to the advantage
of small farmers - would require courts to make “initial
policy determinations” in an area devoid of “judicially
discoverable and manageable standards” and where
“multifarious pronouncements by various departments”
would lead to confusion and disarray. As the Baker Court
explained, “The political question doctrine [is] a tool for
maintenance of governmental order,” 369 U.S. at 215, 82
S.Ct. 691, and this case exemplifies when that tool should
be employed. Courts are ill-equipped to make highly
technical, complex, and on-going decisions regarding
how to maintain market conditions, negotiate trade
agreements, and control currency. The political branches,
in contrast, retain just this sort of institutional compe-
tence. See Chicago & S. Air Lines v. Waterman S.S. Corp.,
333 U.S. 103, 111, 68 S.Ct. 431, 92 L.Ed. 568 (1948)
lla
(explaining that foreign policy decisions “are delicate,
complex, and involve large elements of prophecy... .
They are decisions of a kind for which the Judiciary has
neither aptitude, facilities nor responsibility and have
long been held to belong in the domain of political power
not subject to judicial intrusion or inquiry.”); see also
Curtis A. Bradley, Chevron Deference and Foreign Affairs, 86
Va. L.Rev. 649, 659-60 (2000) (describing the political
question doctrine in terms of the deference courts have
chosen to afford to the Executive Branch).
When we turn to other aspects of Appellants’ prayer
for relief, e.g., a moratorium on farm foreclosures® and
oversight of the Justice Department's enforcement of anti-
trust laws against agribusinesses,? we similarly find our-
selves enmeshed in the Baker threads. Again, the
Constitution commits to Congress the power to regulate
domestic commerce and bankruptcies. See U.S. Const. art.
I, § 8, cl.3 & cl.4. When and how banks may foreclose
upon farms unquestionably falls within those powers,
and nothing in existing bankruptcy law empowers us to
act here. The Constitution requires the President to “take
Care that the Laws be faithfully executed,” U.S. Const.
art. Il, § 3, and vests in the President the general “execu-
tive Power,” id. § 1, cl.1. Thus, there is a textual commit-
ment to the Executive Branch to enforce banking laws
8 Presumably, this request for relief would have to be
directed not against Appellees but against lending institutions
holding mortgages on small farms. That group has not been
named as a party.
9 Similarly, Appellants did not name the Attorney General
as a party.
12a
and to exercise prosecutorial discretion in bringing anti-
trust suits against agribusinesses. See United States v.
Renfro, 620 F.2d 569, 574 (6th Cir.1980) (“The decision of
whether or not to prosecute .. . is a decision firmly
committed by the constitution to the executive branch of
the government. . . . [I]ntervention by the court in the
internal affairs of the Justice Department would clearly
constitute a violation of the Separation of Powers Doc-
trine.”); United States v. Am. Tel. & Tel. Co., 714 F.2d 178,
182 (D.C.Cir.1983) (recognizing prosecutorial discretion).
Furthermore, Article III limits courts to adjudicating
cases and controversies, thereby precluding the sort of
judicial oversight of the political branches in which
Appellants invite us to engage. As the Supreme Court has
observed,
The political question doctrine excludes from
judicial review those controversies which
revolve around policy choices and value deter-
minations constitutionally committed for resolu-
tion to the halls of Congress or the confines of
the Executive Branch. The Judiciary is partic-
ularly ill suited to make such decision, as courts
are fundamentally underequipped to formulate
national policies or develop standards for mat-
ters not legal in nature.
Japan Whaling Ass'n v. Am. Cetacean Soc’y, 478 U.S.
221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986) (quotation
marks omitted).
Likewise, turning to Appellants’ request for a declar-
atory judgment that a 1933 national emergency still exists
and that low farm prices or a strong dollar are affirmative
defenses to actions to collect debt or to foreclose on farm
13a
property, Appellants in essence ask this court to re-for-
mulate national policies because Appellants disagree
with the policies instituted by the political branches.
Indisputably, that is not the role of the Judiciary in our
constitutional system.
Regarding the existence of another national emer-
gency, in that case war, the Supreme Court has refused
“to review the political departments’ determination
of when or whether a war has ended. Dominant is the
need for finality in the political determination, for emer-
gency’s nature demands ‘A prompt and unhesitating obe-
dience.’” Baker, 369 U.S. at 213, 82 S.Ct. 691 (quoting
Martin v. Mott, 25 U.S. (12 Wheat) 19, 30, 6 L.Ed. 537
(1827) (calling up of militia)). As with war, the need for
finality and certainty is critically important to determin-
ing whether a Depression-era national emergency has
ended, for many social programs hinged, directly or indi-
rectly, on that determination. Indeed, Appellants contend
that they have legal rights because the 1933 national
emergency remains on-going. Again, lack of legal stan-
dards and the necessity for the federal government to
speak with one voice militate in favor of leaving such
declarations to the political branches.
Appellants’ request that we declare the existence of
affirmative defenses to actions for debt or foreclosure is
nothing but a plea for the courts to legislate. Clearly, the
Constitution commits this power to Congress and the
President. See INS v. Chadha, 462 U.S. 919, 945, 103 S.Ct.
2764, 77 L.Ed.2d 317 (1983) (“Explicit and unambiguous
provisions of the Constitution prescribe and define the
respective functions of the Congress and of the Executive
in the legislative process.”). Appellants present us with
l4a
no legal arguments as to why these affirmative defenses
allegedly exist; they merely assert that the defenses
should exist. Respect for the legislative process and sep-
aration of powers foreclose us from entertaining Appel-
lants’ suggestion. Deciding whether sound public policy
recommends such affirmative defenses is “an initial pol-
icy determination of a kind clearly for nonjudicial discre-
tion.” Baker, 369 U.S. at 217, 82 S.Ct. 691.
Appellants admit that “Executive Branch discretion
would be invaded” if this court granted the relief they
seek, but assert that it would be invaded “no further than
appropriate[ ].” For the foregoing reasons, we disagree.
Appellants ask us to invade inappropriately the prov-
inces of both the Legislative and Executive Branches. This
we decline to do.
B. Takings Claim
Appellants’ takings claim fails. First, despite coun-
sel’s initial statement at oral argument that “this is a
takings case,” it is unclear whether Appellants properly
presented this issue to this court on appeal. Appellants
mentioned takings language in their Complaint, see
Amended Complaint at 6, 25-26, but they discussed it
only tangentially on appeal, failing either to cite takings
cases or to develop any sort of argument. This is not
sufficient to preserve the issue for appeal. See Okland Oil
Co. v. Conoco Inc., 144 F.3d 1308, 1314 n. 4 (10th Cir.1998)
(“[D]iscussing a theory only in a vague and ambiguous
way below is not adequate to preserve issues for
appeal.”).
15a
Buttressing our conclusion that Appellants failed to
present a takings claim to the district court are Appel-
lants’ repeated assertions that “[they] seek no monetary
damages . . . but, rather, seek only declaratory and injunc-
tive relief.” Opening Brief at 1; see also Amended Com-
plaint at 4 (“[T]he relief requested is purely declaratory
or injunctive.”). Generally, the remedy for a govern-
mental taking is just compensation. See U.S. Const.
amend. V. Moreover, the district court’s order makes no
reference to such a claim. This court “should not be
considered ‘a second-shot’ forum . . . where secondary,
back-up theories may be mounted for the first time.” Tele-
Communications, Inc. v. Comm’r, 104 F.3d 1229, 1233 (10th
Cir.1997).
Even if Appellants properly preserved a takings
claim, that claim fails as premature. “(Tjaking claims
against the Federal Government are premature until the
property owner has availed itself of the process provided
by the Tucker Act.” Williamson County Reg’l Planning
Comm'n v. Hamilton Bank, 473 U.S. 172, 175, 105 S.Ct. 3108,
87 L.Ed.2d 126 (1985). Furthermore, Appellants brought
their takings claim in the wrong court: “The Tucker Act
provides jurisdiction in the United States Claims Court
for any claim against the Federal Government to recover
damages founded on the Constitution, a statute, a regula-
tion, or an express or implied-in-fact contract.” Preseault
v. LC.C., 494 U.S. 1, 11-12, 110 S.Ct. 914, 108 L.Ed.2d 1
(1990) (citing 28 U.S.C. § 1491(a)(1)). Appellants do not
allege that they sought and were denied just compensa-
tion after bringing a Tucker Act claim in the United States
Court of Claims. These facts support our conclusion that
Appellants did not initially intend to make a takings
16a
claim, but later decided to elevate that claim to a more
central position on appeal.
Finally, were we to address Appellants’ takings
claim, we would find it time-barred. Appellants argue, “It
is undisputed that agricultural property rights were sub-
jected to a taking for public use on May 12, 1933.” The
general statute of limitations period for actions against
the United States is six years. See 28 U.S.C. § 2401.
Consequently, we find that Appellants’ takings claim
fails.
CONCLUSION
We AFFIRM the dismissal of Appellants’ complaint.
RELY PO
17a
[Order of the District Court Appealed
to the Tenth Circuit]
ORDER OF THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane, Jr.
Filed July 6, 2000
Civil Action No. 00-AP-154
EUGENE SCHRODER, EDWIN PETROWSKY, R.
RUSSELL GRIDER, and WESLEY MYERS,
Plaintiffs,
Vv.
WILLIAM JEFFERSON CLINTON, President of the
United States; DAN GLICKMAN, United States
Secretary of Agriculture; LAWRENCE SUMMERS,
United States Secretary of the Treasury;
and THE UNITED STATES OF AMERICA,
Defendants.
ORDER
Kane, J.
On May 31, 2000, Defendants filed a Motion to Dis-
miss this civil action pursuant to Federal Rule of Civil
Procedure 12(b)(1),(6). The matter has been fully briefed
and oral argument would not materially assist in deter-
mining the issues presented.
Plaintiffs seek a moratorium on farm foreclosures
and an order requiring the President, Secretary of the
Treasury, Secretary of Agriculture, and their agents to
18a
control United States currency and to maintain market
conditions so as to be favorable to American farmers.
The Motion to Dismiss is GRANTED because this
court lacks jurisdiction over the subject matter and can
grant no relief. The Complaint seeks to have this court
determine political questions which are properly
addressed to the elected branches of the government.
This Court has no jurisdiction over the discretionary acts
of either. Plaintiffs’ remedies are at the polling place, not
the courts.
Case DISMISSED.
Dated at Denver, Colorado, this 6th day of July, 2000.
BY THE COURT:
[Signature]
JOHN L. KANE, JR.
SENIOR U.S. DISTRICT JUDGE
19a
U.S. Constitution
Article I. Section 1.
All legislative Powers herein granted shall be vested in a
Congress of the United States, which shall consist of a
Senate and House of Representatives.
Section 7.
All Bills for raising Revenue shall originate in the House
of Representatives * * *
Section 8.
The Congress shall have Power * * *
[cl. 2] To borrow Money on the credit of the United States;
[cl. 3] To regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes;
[cl. 5] To coin Money, regulate the Value thereof, and of
foreign Coin, and fix the Standard of Weights and
Measures * * *
Section 9.
[cl. 7] No Money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law; and a
regular Statement and Account of the Receipts and
Expenditures of all public Money shall be published from
time to time.
Article II. Section 1.
[cl. 1] The executive Power shall be vested in a President
of the United States of America * * *
20a
Section 2.
[cl. 2] He [the President] shall have Power, by and with
the Advice and Consent of the Senate, to make Treaties,
provided two thirds of the Senators present concur * * .
Article IV. Section 4.
The United States shall guarantee to every State in this
Union a Republican Form of Government * * *
Amendments to the U.S. Constitution
Amendment V (1791) |
No person shall * * * be deprived of life, liberty, or
property, without due process of law; nor shall private
property be taken for public use, without just compensa-
tion.
Amendment XIV. Section 1. (1868)
All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge _
re arene
2la
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection
of the laws.
22a
5 U.S.C.A. Section 702
(West Pub. Co. 2001)
§ 702. Right of review
A person suffering legal wrong because of agency action,
or adversely affected or aggrieved by agency action
within the meaning of a relevant statute, is entitled to
judicial review thereof. An action in a court of the United
States seeking relief other than money damages and stat-
ing a claim that an agency or an officer or employee
thereof acted or failed to act in an official capacity or
under color of legal authority shall not be dismissed nor
relief therein be denied on the ground that it is against
the United States or that the United States is an indispen-
sable party. The United States may be named as a defen-
dant in any such action, and a judgment or decree may be
entered against the United States: Provided, That any
mandatory or injunctive decree shail specify the Federal
officer or officers (by name or by title), and their suc-
cessors in office, personally responsible for compliance.
Nothing herein (1) affects other limitations on judicial
review or the power or duty of the court to dismiss any
action or deny relief on any other appropriate legal or
equitable ground; or (2) confers authority to grant relief if
any other statute that grants consent to suit expressly or
impliedly forbids the relief which is sought.
7 U.S.C.A. Section 291
(West Pub. Co. 2001)
§ 291. Authorization of associations; powers [Capper-Vol-
stead Act]
23a
Persons engaged in the production of agricultural prod-
ucts as farmers, planters, ranchmen, dairymen, nut or
fruit growers may act together in associations, corporate
or otherwise, with or without capital stock, in collectively
processing, preparing for market, handling, and market-
ing in interstate and foreign commerce, such products of
persons so engaged. Such associations may have market-
ing agencies in common; and such associations and their
members may make the necessary contracts and agree-
ments to effect such purposes: Provided, however, That
such associations are operated for the mutual benefit of
the members thereof, as such producers, and conform to
one or both of the following requirements:
First. That no member of the association is allowed
more than one vote because of the amount of stock or
membership capital he may own therein, or,
Second. That the association does not pay dividends
on stock or membership capital in excess of 8 per centum
per annum.
And in any case to the following:
Third. That the association shall not deal in the prod-
ucts of nonmembers to an amount greater in value than
such as are handled by it for members.
7 U.S.C.A. Section 292
(West Pub. Co. 2001)
§ 292. Monopolizing or restraining trade and unduly
enhancing prices prohibited; remedy and procedure
24a
If the Secretary of Agriculture shall have reason to
believe that any such association monopolizes or
restrains trade in interstate or foreign commerce to such
an extent that the price of any agricultural product is
unduly enhanced by reason thereof, he shall serve upon
such association a complaint stating his charge in that
respect, to which complaint shall be attached, or con-
tained therein, a notice of hearing, specifying a day and
place not less than thirty days after the service thereof,
requiring the association to show cause why an order
should not be made directing it to cease and desist from
monopolization or restraint of trade. An association so
complained of may at the time and place so fixed show
cause why such order should not be entered. The evi-
dence given on such a hearing shall be taken under such
rules and regulations as the Secretary of Agriculture may
prescribe, reduced to writing, and made a part of the
record therein. If upon such hearing the Secretary of
Agriculture shall be of the opinion that such association
monopolizes or restrains trade in interstate or foreign
commerce to such an extent that the price of any agri-
cultural product is unduly enhanced thereby, he shall
issue and cause to be served upon the association an
order reciting the facts found by him, directing such
association to cease and desist from monopolization or
restraint of trade. On the request of such association or if
such association fails or neglects for thirty days to obey
such order, the Secretary of Agriculture shall file in the
district court in the judicial district in which such associa-
tion has its principal place of business a certified copy of
the order and of all the records in the proceeding,
together with a petition asking that the order be enforced,
25a
and shall give notice to the Attorney General and to said
association of such filing. Such district court shall there-
upon have jurisdiction to enter a decree affirming, mod-
ifying, or setting aside said order, or enter such other
decree as the court may deem equitable, and may make
rules as to pleadings and proceedings to be had in con-
sidering such order. The place of trial may, for cause or
by consent of parties, be changed as in other causes.
The facts found by the Secretary of Agriculture and
recited or set forth in said order shall be prima facie
evidence of such facts, but either party may adduce addi-
tional evidence. The Department of Justice shall have
charge of the enforcement of such order. After the order
is so filed in such district court and while pending for
review therein the court may issue a temporary writ of
injunction forbidding such association from violating
such order or any part thereof. The court may, upon
conclusion of its hearing, enforce its decree by a perma-
nent injunction or other appropriate remedy. Service of
such complaint and of all notices may be made upon such
association by service upon any officer or agent thereof
engaged in carrying on its business, or on any attorney
authorized to appear in such proceeding for such associa-
tion, and such service shall be binding upon such associa-
tion, the officers, and members thereof.
7 U.S.C.A. Section 601
(West Pub. Co. 2001)
§ 601. Declaration of conditions [AAA - Agricultural
Adjustment Act of May 12, 1933, as amended]
26a
It is declared that the disruption of the orderly exchange
of commodities in interstate commerce impairs the pur-
chasing power of farmers and destroys the value of agri-
cultural assets which support the national credit structure
and that these conditions affect transactions in agri-
cultural commodities with a national public interest, and
burden and obstruct the normal channels of interstate
commerce.
7 U.S.C.A. Section 602
(West Pub. Co. 2001)
§ 602. Declaration of policy; establishment of price basing
period; marketing standards; orderly supply flow; circum-
stances for continued regulation
It is declared to be the policy of Congress -
(1) Through the exercise of the powers conferred
upon the Secretary of Agriculture under this chapter, to
establish and maintain such orderly marketing conditions
for agricultural commodities in interstate commerce as
will establish, as the prices to farmers, parity prices as
defined by section 1301(a)(1) of this title.
(2) To protect the interest of the consumer by (a)
approaching the level of prices which it is declared to be
the policy of Congress to establish in subsection (1) of
this section by gradual correction of the current level at
as rapid a rate as the Secretary of Agriculture deems to be
in the public interest and feasible in view of the current
consumptive demand in domestic and foreign markets,
and (b) authorizing no action under this chapter which
27a
has for its purpose the maintenance of prices to farmers
above the level which it is declared to be the policy of
Congress to establish in subsection (1) of this section.
(3) Through the exercise of the powers conferred
upon the Secretary of Agriculture under this chapter, to
establish and maintain such production research, market-
ing research, and development projects provided in sec-
tion 608c(6)(I) of this title, such container and pack
requirements provided in section 608c(6)(H) of this title?
such minimum standards of quality and maturity and
such grading and inspection requirements for agri-
cultural commodities enumerated in section 608c(2) of
this title, other than milk and its products, in interstate
commerce as will effectuate such orderly marketing of
such agricultural commodities as will be in the public
interest.
(4) Through the exercise of the powers conferred
upon the Secretary of Agriculture under this chapter, to
establish and maintain such orderly marketing conditions
for any agricultural commodity enumerated in section
608c(2) of this title as will provide, in the interests of
producers and consumers, an orderly flow of the supply
thereof to market throughout its normal marketing sea-
son to avoid unreasonable fluctuations in supplies and
prices.
(5) Through the exercise of the power conferred
upon the Secretary of Agriculture under this chapter, to
continue for the remainder of any marketing season or
marketing year, such regulation pursuant to any order as
1 So in original. Probably should be followed by a comma.
sav aan te nn iia abel ntat
28a
will tend to avoid a disruption of the orderly marketing
of any commodity and be in the public interest, if the
regulation of such commodity under such order has been
initiated during such marketing season or marketing year
on the basis of its need to effectuate the policy of this
chapter.
7 U.S.C. Section 613 (1999)
Section 613. Termination date; investigations and reports
This chapter shall cease to be in effect
whenever the President finds and proclaims that
the national economic emergency in relation to
agriculture has been ended; and pending such
time the President shall by proclamation termi-
nate with respect to any basic agricultural com-
modity such provisions of this chapter as he
finds are not requisite to carrying out the
declared policy with respect to such commodity.
In the case of sugar beets and sugarcane, the
taxes provided by this chapter shall cease to be
in effect, and the powers vested in the President
or in the Secretary of Agriculture shall terminate
on December 31, 1937 unless this chapter ceases
to be in effect at an earlier date, as hereinabove
provided. The Secretary of Agriculture shall
make such investigations and reports thereon to
the President as may be necessary to aid him in
executing this section.
29a
7 U.S.C.A. Section 1301
(West Pub. Co. 2001)
§ 1301. Definitions
(a) General definitions
For the purposes of this subchapter and the declaration of
policy -
(1)(A) The “parity price” for any agricultural com-
modity, as of any date, shall be determined by multiply-
ing the adjusted base price of such commodity as of such
date by the parity index as of such date.
(B) The “adjusted base price” of any agricultural
commodity, as of any date, shall be (i) the average of the
prices received by farmers for such commodity, at such
times as the Secretary may select during each year of the
ten-year period ending on the 31st of December last
before such date, or during each marketing season begin-
ning in such period if the Secretary determines use of a
calendar year basis to be impracticable, divided by (ii) the
ratio of the general level of prices received by farmers for
agricultural commodities during such period to the gen-
eral level of prices received by farmers for agricultural
commodities during the period January 1910 to December
1914, inclusive. As used in this subparagraph, the term
“prices” shall include wartime subsidy payments made to
producers under programs designed to maintain maxi-
mum prices established under the Emergency Price Con-
trol Act of 1942.
(C) The “parity index”, as of any date, shall be the
ratio of (i) the general level of prices for articles and
services that farmers buy, wages paid hired farm labor,
30a
interest on farm indebtedness secured by farm real estate,
and taxes on farm real estate, for the calendar month
ending last before such date to (ii) the general level of
such prices, wages, rates, and taxes during the period
January 1910 to December 1914, inclusive.
(D) The prices and indices provided for herein, and
the data used in computing them, shall be determined by
the Secretary, whose determination shall be final.
(E) Notwithstanding the provisions of subpara-
graph (A) of this paragraph, the transitional parity price
for any agricultural commodity, computed as provided in
this subparagraph, shall be used as the parity price for
such commodity until such date after January 1, 1950, as
such transitional parity price may be lower than the
parity price, computed as provided in subparagraph (A)
of this paragraph, for such commodity. The transitional
parity price for any agricultural commodity as of any
date shall be -
(i) its parity price determined in the manner used
prior to the effective date of the Agricultural Act of 1948,
less
(ii) 5 per centum of the parity price so determined
multiplied by the number of full calendar years (not
counting 1956 in the case of basic agricultural commodi-
ties) which, as of such date, have elapsed after January 1,
1949, in the case of non-basic agricultural commodities,
and after January 1, 1955, in the case of the basic agri-
cultural commodities.
(F) Notwithstanding the provisions of subpara-
graphs (A) and (E) of this paragraph, if the parity price
-~
3la
for any agricultural commodity, computed as provided in
subparagraphs (A) and (E) of this paragraph, appears to
be seriously out of line with the parity prices of other
agricultural commodities, the Secretary may, and upon
the request of a substantial number of interested pro-
ducers shall, hold public hearings to determine the
proper relationship between the parity price of such com-
modity and the parity prices of other agricultural com-
modities. Within sixty days after commencing such
hearing the Secretary shall complete such hearing, pro-
claim his findings as to whether the facts require a revi-
sion of the method of computing the parity price of such
commodity, and put into effect any revision so found to
be required.
(G) Notwithstanding the foregoing provisions of
this section, the parity price for any basic agricultural
commodity, as of any date during the six-year period
beginning January 1, 1950, shall not be less than its parity
price computed in the manner used prior to October 31,
1949.
(2) “Parity”, as applied to income, shall be that
gross income from agriculture which will provide the
farm operator and his family with a standard of living
equivalent to those afforded persons dependent upon
other gainful occupation. “Parity” as applied to income
from any agricultural commodity for any year, shall be
that gross income which bears the same relationship to
parity income from agriculture for such year as the aver-
age gross income from such commodity for the preceding
ten calendar years bears to the average gross income from
agriculture for such ten calendar years.
32a
(3) The term “interstate and foreign commerce”
means sale, marketing, trade, and traffic between any
State or Territory or the District of Columbia or Puerto
Rico, and any place outside thereof; or between points
within the same State or Territory or within the District of
Columbia or Puerto Rico, through any place outside
thereof; or within any Territory or within the District of
Columbia or Puerto Rico.
(4) The term “affect interstate and foreign com-
merce” means, among other things, in such commerce, or
to burden or obstruct such commerce or the free and
orderly flow thereof; or to create or tend to create a
surplus of any agricultural commodity which burdens or
obstructs such commerce or the free and orderly flow
thereof.
(5) The term “United States” means the several
States and Territories and the District of Columbia and
Puerto Rico.
(6) The term “State” includes a Territory and the
District of Columbia and Puerto Rico.
(7) The term “Secretary” means the Secretary of
Agriculture, and the term “Department” means the
Department of Agriculture.
(8) The term “person” means an individual, part-
nership, firm, joint-stock company, corporation, associa-
tion, trust, estate, or any agency of a State.
(9) The term “corn” means field corn.
(b) Definitions applicable to one or more commodities
[Definitions applicable to tobacco only are omitted.]
33a
For the purposes of this subchapter -
(1)(A) “Actual production” as applied to any acre-
age of corn means the number of bushels of corn which
the local committee determines would be harvested as
grain from such acreage if all the corn on such acreage
were so harvested. In case of a disagreement between the
farmer and the local committee as to the actual produc-
tion of the acreage of corn on the farm, or in case the local
committee determines that such actual production is sub-
stantially below normal, the local committee, in accor-
dance with regulations of the Secretary, shall weigh
representative samples of ear corn taken from the acreage
involved, make proper deductions for moisture content,
and determine the actual production of such acreage on
the basis of such samples.
(B) “Actual production” of any number of acres of
cotton, rice or peanuts on a farm means the actual aver-
age yield for the farm times such number of acres.
(2) “Bushel” means in the case of ear corn that
amount of ear corn, including not to exceed 15 1/2 per
centum of moisture content, which weighs seventy
pounds, and in the case of shelled corn, means that
amount of shelled corn including not to exceed 15 1/2 per
centum of moisture content, which weighs fifty-six
pounds.
(3)(A) “Carry-over”, in the case of corn, rice, and
peanuts for any marketing year shall be the quantity of
the commodity on hand in the United States at the begin-
ning of such marketing year, not including any quantity
which was produced in the United States during the
calendar year then current.
34a
(B) “Carry-over” of cotton for any marketing year
shall be the quantity of cotton on hand in the United
States at the beginning of such marketing year, not
including any part of the crop which was produced in the
United States during the calendar year then current. * * *
(D) “Carry-over” of wheat, for any marketing year
shall be the quantity of wheat on hand in the United
States at the beginning of such marketing year, not
including any wheat which was produced in the United
States during the calendar year then current, and not
including any wheat held by the Federal Crop Insurance
Corporation under the Federal Crop Insurance Act [7
U.S.C.A. § 1501 et seq.].
(4)(A) “Commercial corn-producing area” shall
include all counties in which the average production of
corn (excluding corn used as silage) during the ten calen-
dar years immediately preceding the calendar year for
which such area is determined, after adjustment for
‘abnormal weather conditions, is four hundred and fifty
bushels or more per farm and four bushels or more for
each acre of farm land in the county.
(B) Whenever prior to February 1 of any calendar
year the Secretary has reason to believe that any county
which is not included in the commercial corn-producing
area determined pursuant to the provisions of subpara-
graph (A) of this subsection, but which borders upon one
of the counties in such area, or that any minor civil
division in a county bordering on such area, is producing
(excluding corn used for silage) an average of at least
four hundred and fifty bushels of corn per farm and an
average of at least four bushels for each acre of farm land
ss
35a
in the county or in the minor civil division, as the case
may be, he shall cause immediate investigation to be
made to determine such fact. If, upon the basis of such
investigation, the Secretary finds that such county or
minor civil division is likely to produce corn in such
average amounts during such calendar year, he shall
proclaim such determination, and, commencing with
such calendar year, such county shall be included in the
commercial corn-producing area. In the case of a county
included in the commercial corn-producing area pursuant
to this subparagraph, whenever prior to February 1 of
any calendar year the Secretary has reason to believe that
facts justifying the inclusion of such county are not likely
to exist in such calendar year, he shall cause an immedi-
ate investigation to be made with respect thereto. If, upon
the basis of such investigation, the Secretary finds that
such facts are not likely to exist in such calendar year, he
shall proclaim such determination, and commencing with
such calendar year, such county shall be excluded from
the commercial corn-producing area.
(5) “Farm consumption” of corn means consump-
tion by the farmer’s family, employees, or household, or
by his work stock; or consumption by poultry or livestock
on his farm if such poultry or livestock, or the products
thereof, are consumed or to be consumed by the farmer's
family, employees, or household.
(6)(A) “Market”, in the case of corn, cotton, rice,
tobacco, and wheat, means to dispose of, in raw or
processed form, by voluntary or involuntary sale, barter,
or exchange, or by gift inter vivos, and, in the case of
corn and wheat, by feeding (im amy form) to poultry or
36a
livestock which, or the products of which, are sold, bar-
tered, or exchanged, or to be so disposed of, but does not
include disposing of any such commodities as premium
to the Federal Crop Insurance Corporation under the
Federal Crop Insurance Act [7 U.S.C.A. § 1501 et seq.].
(B) “Marketed”, “marketing”, and “for market”
shall have corresponding meanings to the term “market”
in the connection in which they are used.
(C) “Market”, in the case of peanuts, means to dis-
pose of peanuts, including farmers’ stock peanuts, shel-
led peanuts, cleaned peanuts, or peanuts in processed
form, by voluntary or involuntary sale, barter, or
exchange, or by gift inter vivos.
(7) “Marketing year” means, in the case of the fol-
lowing commodities, the period beginning on the first
and ending with the second date specified below:
Corn, September 1-August 31;
Cotton, August 1-July 31;
Rice, August 1-July 31;
Tobacco (flue-cured), July 1-June 30;
Tobacco (other than flue-cured), October 1-Sep-
tember 30;
Wheat, June 1-May 31.
(8)(A) “National average yield” as applied to cotton
or wheat shall be the national average yield per acre of
the commodity during the ten calendar years in the case
of wheat, and during the five calendar years in the case of
cotton, preceding the year in which such national average
37a
yield is used in any computation authorized in this sub-
chapter, adjusted for abnormal weather conditions and,
in the case of wheat, but not in the case of cotton, for
trends in yields.
(B) “Projected national yield” as applied to any
crop of wheat shall be determined on the basis of the
national yield per harvested acre of the commodity dur-
ing each of the five calendar years immediately preceding
the year in which such projected national yield is deter-
mined, adjusted for abnormal weather conditions affect-
ing such yield, for trends in yields and for any significant
changes in production practices.
(9) “Normal production” as applied to any number
of acres of corn or rice means the normal yield for the
farm times such number of acres. “Normal production”
as applied to any number of acres of cotton or wheat
means the projected farm yield times such number of
acres.
(10)(A) “Normal supply” in the case of corn, rice,
wheat, and peanuts for any marketing year shall be (i) the
estimated domestic consumption of the commodity for
the marketing year ending immediately prior to the mar-
keting year for which normal supply is being determined,
plus (ii) the estimated exports of the commodity for the
marketing year for which normal supply is being deter-
mined, plus (iii) an allowance for carry-over. The
allowance for carry-over shall be the following percent-
age of the sum of the consumption and exports used in
computing normal supply: 15 per centum in the case of
corn; 10 per centum in the case of rice; 20 per centum in
the case of wheat; and 15 per centum in the case of
38a
peanuts. In determining normal supply the Secretary
shall make such adjustments for current trends in con-
sumption and for unusual conditions as he may deem
necessary. * * *
(C) The “normal supply” of cotton for any market-
ing year shall be the estimated domestic consumption of
cotton for the marketing-year for which such normal
supply is being determined, plus the estimated exports of
cotton for such marketing year, plus, 30 per centum of the
sum of such consumption and exports as an allowance for
carry-over.
(11)(A) “Normal year’s domestic consumption”, in
the case of corn and wheat, shall be the yearly average
quantity of the commodity, wherever produced, that was
cosumed! in the United States during the ten marketing
years immediately preceding the marketing year in which
such consumption is determined, adjusted for current
trends in such consumption.
(B) “Normal year’s domestic consumption”, in the
case of cotton and tobacco, shall be the yearly average
quantity of the commodity produced in the United States
that was consumed in the United States during the ten
marketing years immediately preceding the marketing
year in which such consumption is determined, adjusted
for current trends in such consumption.
(C) “Normal year’s domestic consumption”, in the
case of rice, shall be the yearly average quantity of rice
produced in the United States that was consumed in the
1 So in original. Probably should be “consumed”.
Tate heer
ae
Sed Cypti Gry
Sirs ahem “etches Vane para eM MARA
39a
United States during the five marketing years imme-
diately preceding the marketing year in which such con-
sumption is determined, adjusted for current trends in
such consumption.
(12) “Normal year’s exports” in the case of corn,
cotton, rice, tobacco, and wheat shall be the yearly aver-
age quantity of the commodity produced in the United
States that-was exported from the United States during
the ten marketing years (or, in the case of rice, the five
marketing years) immediately preceding the marketing
year in which such exports are determined, adjusted for
current trends in such exports.
(13)(A) Repealed. Pub. L. 87-703, Title III, § 320(1),
Sept. 27, 1962, 76 Stat. 625
(B) “Normal yield” for any county, in the case of
peanuts, shall be the average yield per acre of peanuts for
the county, adjusted for abnormal weather conditions,
during the five calendar years immediately preceding the
year in which such normal yield is determined. For 1942,
the normal yield for any county, in the case of peanuts,
shall be the average yield per acre for peanuts for the
county, adjusted for abnormal conditions, during the
years 1936-1940, inclusive, except that for any county in
which the years 1935-1939, inclusive, are equally as repre-
sentative, such period may be used in determining the
normal yields for counties in the State.
(C) In applying subparagraph (A) or (B) of this
paragraph, if for any such year the data are not available,
or there is no actual yield, an appraised yield for such
year, determined in accordance with regulations issued
by the Secretary, shall be used as the actual yield for such
40a
year. In applying such subparagraphs, if, on account of
drought, flood, insect pests, plant disease, or other
uncontrollable natural cause, the yield in any year of such
ten-year period or five-year period, as the case may be, is
less than 75 per centum of the average (computed with-
out regard to such year) such year shall be eliminated in
calculating the normal yield per acre.
(D) “Normal yield” for any county, in the case of
rice and wheat, shall be the average yield per acre of rice
or wheat, as the case may be, for the county during the
five calendar years immediately preceding the year for
which such normal yield is determined in the case of rice,
or during the five years immediately preceding the year
in which such normal yield is determined in the case of
wheat, adjusted for abnormal weather conditions and for
trends in yields. If for any such year data are not avail-
able, or there is no actual yield, an appraised yield for
such year, determined in accordance with regulations
issued by the Secretary, taking into consideration the
yields obtained in surrounding counties during such year
and the yield in years for which data are available, shall
be used as the actual yield for such year.
(E) “Normal yield” for any farm, in the case of rice
and wheat, shall be the average yield per acre of rice or
wheat, as the case may be, for the farm during the five
calendar years immediately preceding the year for which
such normal yield is determined in the case of rice, or
during the five years immediately preceding the year in
which such normal yield is determined in the case of
wheat, adjusted for abnormal weather conditions and for
trends in yields. If for any such year the data are not
available or there is no actual yield, then the normal yield
4la
for the farm shall be appraised in accordance with regula-
tions issued by the Secretary, taking into consideration
abnormal weather conditions, trends in yields, the nor-
mal yield for the county, the yields obtained on adjacent
farms during such year and the yield in years for which
data are available.
(F) In applying subparagraphs (D) and (E) of this
paragraph, if on account of drought, flood, insect pests,
plant disease, or other uncontrollable natural cause, the
yield for any year of such five-year period is less than 75
per centum of the average, 75 per centum of such average
shall be substituted therefor in calculating the normal
yield per acre. If, on account of abnormally favorable
weather conditions, the yield for any year of such five-
year period is in excess of 125 per centum of the average,
125 per centum of such average shall be substituted
therefor in calculating the normal yield per acre.
(G) “Normal yield” for any farm, in the case of corn
or peanuts, shall be the average yield per acre of corn or
peanuts, as the case may be, for the farm, adjusted for
abnormal weather conditions, during the five calendar
years immediately preceding the year in which such nor-
mal yield is determined. For 1942, the normal yield for
any farm, in the case of peanuts, shall be the average
yield per acre of peanuts for the farm, adjusted for abnor-
mal conditions, during the years 1936-1940, inclusive,
except that for any county in which the years 1935-1939,
inclusive, are equally as representative, such period may
be used in determining normal yields for farms in the
county. If for any such year the data are not available or
there is no actual yield, then the normal yield for the farm
shall be appraised in accordance with regulations of the
42a
Secretary, taking into consideration abnormal weather
conditions, the normal yield for the county, and the yield
in years for which data are available.
(H) “Normal yield” for any county, for any crop of
cotton, shall be the average yield per acre of cotton for
the county, adjusted for abnormal weather conditions and
any significant changes in production practices during
the five calendar years immediately preceding the year in
which the national marketing quota for such crop is pro-
claimed. If for any such year the data are not available, or
there is no actual yield, an appraised yield for such year,
determined in accordance with regulations issued by the
Secretary, shall be used as the actual yield for such year.
(I) “Normal yield” for any farm, for any crop of
cotton, shall be the average yield per acre of cotton for
the farm, adjusted for abnormal weather conditions and
any significant changes in production practices during
the three calendar years immediately preceding the year
in which such normal yield is determined. If for any such
year the data are not available, or there is no actual yield,
then the normal yield for the farm shall be appraised in
accordance with regulations of the Secretary, taking into
consideration abnormal weather conditions, the normal
yield for the county, changes in production practices, and
the yield in years for which data are available.
(J) “Projected county yield” for any crop of wheat
shall be determined on the basis of the yield per har-
vested acre of such commodity in the county during each
of the five calendar years immediately preceding the year
in which such projected county yield is determined,
adjusted for abnormal weather conditions affecting such
43a
yield, for trends in yields and for any significant changes
in production practices.
(K) “Projected farm yield” for any crop of wheat
shall be determined on the basis of the yield per har-
vested acre of such commodity on the farm during each
of the three calendar years immediately preceding the
year in which such projected farm yield is determined,
adjusted for abnormal weather conditions affecting such
yield, for trends in yields and for any significant changes
in production practices, but in no event shall such pro-
jected farm yield be less than the normal yield for such
farm as provided in subparagraph (E) of this paragraph.
(L) “Projected national, State, and county yields”
for any crop of cotton shall be determined on the basis of
the yield per harvested acre of such crop in the United
States, the State and the county, respectively, during each
of the five calendar years immediately preceding the year
in which such projected yield for the United States, the
State, and the county, respectively, is determined,
adjusted for abnormal weather conditions affecting such
yield, for trends in yields, and for any significant changes
in production practices.
(M) “Projected farm yield” for any crop of cotton
shall be determined on the basis of the yield per har-
vested acre of such crop on the farm during each of the
three calendar years immediately preceding the year in
which such projected farm yield is determined, adjusted
for abnormal weather conditions affecting such yield, for
trends in yields, and for any significant changes in pro-
duction practices, but in no event shall such projected
44a
farm yield be less than the normal yield for such farm as
provided in subparagraph (I) of this paragraph.
(14)(A) “Reserve supply level”, in the case of corn,
shall be a normal year’s domestic consumption and
exports of corn plus 10 per centum of a normal year’s
domestic consumption and exports, to insure a supply
adequate to meet domestic consumption and export
needs in years of drought, flood, or other adverse condi-
tions, as well as in years of plenty. * * *
(16)(A) “Total supply” of wheat, corn, rice, and pea-
nuts for any marketing year shall be the carry-over of the
commodity for such marketing year, plus the estimated
production of the commodity in the United States during
the calendar year in which such marketing year begins
and the estimated imports of the commodity into the
United States during such marketing year. * * *
io eet BEd
(C) “Total supply” of cotton for any marketing year
shall be the carry-over at the beginning of such marketing
year, plus the estimated production of cotton in the
United States during the calendar year in which such
marketing year begins and the estimated imports of cot-
ton into the United States during such marketing
* * *
year.
Tee Ope rp=
(c) Use of Federal statistics
The latest available statistics of the Federal Government
shall be used by the Secretary in making the determina-
tions required to be made by the Secretary under this
chapter.
SD este PEED RE ONT re
(d) Exclusion of stocks of certain commodities
45a
In making any determination under this chapter or
under the Agricultural Act of 1949 [7 U.S.C.A. § 1421 et
seq.] with respect to the carryover of any agricultural
commodity, the Secretary shall exclude from such deter-
mination the stocks of any commodity acquired pursuant
to, or under the authority of, the Strategic and Critical
Materials Stock Piling Act (60 Stat. 596) [50 U.S.C.A. § 98
et seq.].
7 U.S.C.A. Section 1303
(West Pub. Co. 2001)
§ 1303. Parity payments
If and when appropriations are made therefor, the Secre-
tary is authorized and directed to make payments to
producers of corn, wheat, cotton, rice, or tobacco, on their
normal production of such commodities in amounts
which, together with the proceeds thereof, will provide-a
return to such producers which is as nearly equal to
parity price as the funds so made available will permit.
All funds available for such payments with respect to
these commodities shall, unless otherwise provided by
law, be apportioned to these commodities in proportion
to the amount by which each fails to reach the parity
income. Such payments shall be in addition to and not in
substitution for any other payments authorized by law.
46a
7 U.S.C.A. Section 5671
(West Pub. Co. 2001)
§ 5671. Agricultural embargo protection
(a) Prerequisites; scope of compensation
Notwithstanding any other provision of law, if -
(1) the President or other member of the executive
branch of the Federal Government causes the export of
any agricultural commodity to any country or area of the
world to be suspended or restricted for reasons of
national security or foreign policy under the Export
Administration Act of 1979 (50 U.S.C. App. 2401 et seq.)
or under any provision of law;
(2) such suspension or restriction of the export of
such agricultural commodity is imposed other than in
connection with a suspension or restriction of all exports
from the United States to such country or area of the
world; and
(3) sales of such agricultural commodity for export
from the United States to such country or area of the
world during the year preceding the year in which the
suspension or restriction is imposed exceeds 3 percent of
the total sales of such commodity for export from the
United States to all foreign countries during the year
preceding the year in which the suspension or restriction
is in effect;
the Secretary shall compensate producers of the commod-
ity involved by making payments available to such pro-
ducers, as provided in subsection (b) of this section.
47a
(b) Amount of payments
If the Secretary makes payments available to producers
under subsection (a) of this section, the amount of such
payment shall be determined -
(1) in the case of an agricultural commodity for
which payments are authorized to be made to producers
under Title I of the Agricultural Act of 1949 (7 U.S.C. 1441
et seq.), by multiplying -
(A) the farm program payment yield for the pro-
ducer or the yield established for the farm for the com-
modity involved; by
(B) the crop acreage base established for the com-
modity; by
(C) the amount by which the average market price
per unit of such commodity received by producers during
the 60-day period immediately following the date of the
imposition of the suspension or restriction is less than 100
percent of the parity price for such commodity, as deter-
mined by the Secretary on the date of the imposition of
the suspension or restriction; or
(2) in the case of other agricultural commodities for
which price support is authorized for producers under
the Agricultural Act of 1949 (7 U.S.C. 1421 et seq.), by
multiplying the amount by which the average market
price per unit of such commodity received by the pro-
ducers during the 60-day period immediately following
the date of the imposition of the suspension or restriction
is less than 100 percent of the parity price for such
commodity, as determined by the Secretary on the date of
the imposition of the suspension or restriction, by the
48a
quantity of such commodity sold by the producer during
the period that the suspension or restriction is in effect.
(c) Time for payments
Payments under paragraph (1) of subsection (b) of this
section shall be made for each marketing year or part
thereof during which the suspension or restriction is in
effect’and shall be made in equal amounts at 90-day
intervals, beginning 90 days after the date of the imposi-
tion of the suspension or restriction. —
(d) Commodity Credit Corporation
The Secretary shall use the Commodity Credit Corpora-
tion in carrying out the provisions of this section.
(e) Regulations
The Secretary may issue such regulations as are deter-
mined necessary to carry out this section.
7 U.S.C.A. Section 7301
(West Pub. Co. 2001)
§ 7301. Suspension and repeal of permanent price support
authority (“Freedom to Farm” Act of 1996]
(a) Agricultural Adjustment Act of 1938
(1) Suspensions
The following provisions of the Agricultural Adjustment
Act of 1938 [7 U.S.C.A. § 1281 et seq.] shall not be
applicable to the 1996 through 2002 crops of loan com-
~___ modities, peanuts, and sugar and shall not be applicable
49a
to milk during the period beginning on April 4, 1996, and
ending on December 31, 2002:
(A) Parts II through V of subtitle B of title II (7
U.S.C. 1326- 1351).
(B) Subsections (a) through (j) of section 358 (7
U.S.C. 1358).
(C) Subsections (a) through (h) of section 358a (7
U.S.C. 1358a).
(D) Subsections (a), (b), (d), and (e) of section 358d
(7 U.S.C. 1359).
(E) Part VII of subtitle B of title III (7 U.S.C.
1359aa-1359}}).
(F) In the case of peanuts, part I of subtitle C of title
Ill (7 U.S.C. 1361-1368).
(G) In the case of upland cotton, section 377 (7
U.S.C. 1377).
(H) Subtitle D of title III (7 U.S.C. 1379a-1379)).
(I) Title IV (7 U.S.C. 1401-1407).
(2) Omitted
(b) Agricultural Act of 1949
(1) Suspensions
The following provisions of the Agricultural Act of 1949
[7 U.S.C.A § 1421 et seq.] shall not be applicable to the
1996 through 2002 crops of loan commodities, peanuts,
and sugar and shall not be applicable to milk during the
period beginning on April 4, 1996, and ending on Decem-
ber 31, 2002:
Age - ~
(A)
(B)
(C)
(D)
(E)
(F)
(G)
(H)
50a
Section 101 (7 U.S.C. 1441).
Section 103(a) (7 U.S.C. 1444(a)).
Section 105 (7 U.S.C. 1444b).
Section 107 (7 U.S.C. 1445a).
Section 110 (7 U.S.C. 1445e).
Section 112 (7 U.S.C. 1445g).
Section 115 (7 U.S.C. 1445k).
Section 201 (7 U.S.C. 1446).
(I) Title III (7 U.S.C. 1447-1449).
(J) Title IV (7 U.S.C. 1421-1433d), other than sec-
tions 404, 412, and 416 (7 U.S.C. 1424, 1429, and 1431).
(K)
(L)
Title V (7 U.S.C. 1461-1469).
Title VI (7 U.S.C, 1471-1471)).
(2) Repeals
The following provisions of the Agricultural Act of 1949
[7 U.S.C.A. § 1421 et seq.] are repealed:
(A)
(B)
(C)
(D)
(E)
(F)
Section 101B (7 U.S.C. 1441-2).
Section 103B (7 U.S.C. 1444-2).
Section 105B (7 U.S.C. 1444f).
Section 107B [7 U.S.C.A. § 1445b-3a].
Section 108B (7 U.S.C. 1445c-3).
Section 113 (7 U.S.C. 1445h).
(G) Subsections (b) and (c) of section 114 (7 U.S.C.
1445)).
5la
(H) Sections 205, 206, and 207 (7 U.S.C. 1446f,
1446g, and 1446h).
(I) Sections 406 and 427 (7 U.S.C. 1426 and 1433f).
(3) Omitted
(c) Suspension of certain quota provisions
The joint resolution entitled “A joint resolution relating to
corn and wheat marketing quotas under the Agricultural
Adjustment Act of 1938, as amended”, approved May 26,
1941 (7 U.S.C. 1330 and 1340), shall not be applicable to
the crops of wheat planted for harvest in the calendar
years 1996 through 2002.
12 U.S.C.A. Section 225a
(West Pub. Co. 2001)
§ 225a. Maintenance of long run growth of monetary and
credit aggregates
The Board of Governors of the Federal Reserve System
and the Federal Open Market Committee shall maintain
long run growth of the monetary and credit aggregates
commensurate with the economy’s long run potential to
increase production, so as to promote effectively the goals
of maximum employment, stable prices, and moderate
long-term interest rates.
52a
12 U.S.C.A. Section 241
(West Pub. Co. 2001)
§ 241. Creation; membership; compensation and expenses
The Board of Governors of the Federal Reserve Sys-
tem (hereinafter referred to as the “Board”) shall be com-
posed of seven members, to be appointed by the
President, by and with the advice and consent of the
Senate, after August 23, 1935, for terms of fourteen years
except as hereinafter provided * * * In selecting the mem-
bers of the Board, not more than one of whom shall be
selected from any one Federal Reserve district, the Presi-
dent shall have due regard to a fair representation of the
financial, agricultural, industrial, and commercial inter-
ests, and geographical divisions of the country. The mem-
bers of the Board shall devote their entire time to the
business of the Board * * *
12 U.S.C.A. Section 355
(West Pub. Co. 2001)
§ 355. Purchase and sale of obligations of National, State, and
municipal governments; open market operations; purchases
and sales from or to United States; maximum aggregate
amount of obligations acquired directly from or loaned directly
to United States
Every Federal Reserve bank shall have power:
(1) To buy and sell, at home or abroad, bonds and
notes of the United States, bonds issued under the provi-
sions of subsection (c) of section 1463 of this title and
53a
having maturities from date of purchase of not exceeding
six months, and bills, notes, revenue bonds, and warrants
with a maturity from date of purchase of not exceeding
six months, issued in anticipation of the collection of
taxes or in anticipation of the receipt of assured revenues
by any State, county, district, political subdivision, or
municipality in the continental United States, including
irrigation, drainage and reclamation districts, and obliga-
tions of, or fully guaranteed as to principal and interest
by, a foreign government or agency thereof, such pur-
chases to be made in accordance with rules and regula-
tions prescribed by the Board of Governors of the Federal
Reserve System. Notwithstanding any other provision of
this chapter, any bonds, notes, or other obligations which
are direct obligations of the United States or which are
fully guaranteed by the United States as to principal and
interest may be bought and sold without regard to matu-
rities but only in the open market.
(2) To buy and sell in the open market, under the
direction and regulations of the Federal Open Market
Committee, any obligation which is a direct obligation of,
or fully guaranteed as to principal and interest by, any
agency of the United States.
54a
15 U.S.C. Section 1
(1999)
Section 1. Trusts, etc., in restraint of trade illegal; penalty
[Sherman Anti-Trust Act of 1890, as amended]
Every contract, combination in the form of trust or
otherwise, or conspiracy, in restraint of trade or com-
merce among the several States, or with foreign nations,
is declared to be illegal. Every person who shall make
any contract or engage in any combination or conspiracy
hereby declared to be illegal-shall be deemed guilty of a
felony, and, on conviction thereof, shall be punished by
fine not exceeding $10,000,000 if a corporation, or, if any
other person, $350,000, or by imprisonment not exceeding
three years, or by both said punishments, in the discre-
tion of the court. :
15 U.S.C.A. Section 18
(West Pub. Co. 2001)
§ 18. Acquisition by one corporation of stock of another
No person engaged in commerce or in any activity
affecting commerce shall acquire, directly or indirectly,
the whole or any part of the stock or other share capital
and no person subject to the jurisdiction of the Federal
Trade Commission shall acquire the whole or any part of
the assets of another person engaged also in commerce or
in any activity affecting commerce, where in any line of
commerce or in any activity affecting commerce in any
section of the country, the effect of such acquisition may
aa i
55a
be substantially to lessen competition, or to tend to create
“a monopoly.
No person shall acquire, directly or indirectly, the
whole or any part of the stock or other share capital and
no person subject to the jurisdiction of the Federal Trade
Commission shall acquire the whole or any part of the
assets of one or more persons engaged in commerce or in
any activity affecting commerce, where in any line of
commerce or in any activity affecting commerce in any
section of the country, the effect of such acquisition, of
such stocks or assets, or of the use of such stock by the
voting or granting of proxies or otherwise, may be sub-
stantially to lessen competition, or to tend to create a
monopoly.
This section shall not apply to persons purchasing
such stock solely for investment and not using the same
by voting or otherwise to bring about, or in attempting to
bring about, the substantial lessening of competition. Nor
shall anything contained in this section prevent a corpo-
ration engaged in commerce or in any activity affecting
commerce from causing the formation of subsidiary cor-
porations for the actual carrying on of their immediate
lawful business, or the natural and legitimate branches or
extensions thereof, or from owning and holding all or a
part of the stock of such subsidiary corporations, when
the effect of such formation is not to substantially lessen
competition.
Nor shall anything herein contained be construed to
prohibit any common carrier subject to the laws to regu-
late commerce from aiding in the construction of
branches or short lines so located as to become feeders to
56a
the main line of the company so aiding in such construc-
tion or from acquiring or owning all or any part of the
stock of such branch lines, nor to prevent any such com-
mon carrier from acquiring and owning all or any part of
the stock of a branch or short line constructed by an
independent company where there is no substantial com-
petition between the company owning the branch line so
constructed and the company owning the main line
acquiring the property or an interest therein, nor to pre-
vent such common carrier from extending any of its lines
through the medium of the acquisition of stock or other-
wise of any other common carrier where there is no
substantial competition between the company extending
its lines and the company whose stock, property, or an
interest therein is so acquired.
Nothing contained in this section shall be held to
affect or impair any right heretofore legally acquired:
Provided, That nothing in this section shall be held or
construed to authorize or make lawful anything here-
tofore prohibited or made illegal by the antitrust laws,
nor to exempt any person from the penal provisions
thereof or the civil remedies therein provided.
Nothing contained in this section shall apply to
transactions duly consummated pursuant to authority
given by the Secretary of Transportation, Federal Power
Commission, Surface Transportation Board, the Securities
and Exchange Commission in the exercise of its jurisdic-
tion under section 79j of this title, the United States
Maritime Commission, or the Secretary of Agriculture
57a
under any statutory provision vesting such power in such
Commission, Board, or Secretary.
15 U.S.C.A. Section 1022c
(West Pub. Co. 2001)
§ 1022c. Inclusion of priority policies and programs in Presi-
dent's Budget
To contribute to the achievement of the goals under
the Full Employment and Balanced Growth Act of 1978
[15 U.S.C.A. § 3101 et seq.], the President’s Budget for
each fiscal year beginning after October 27, 1978, shall
include priority policies and programs, which shall
include, to the extent deemed appropriate by the Presi-
dent, consideration of the following - * * *
(C) development of a comprehensive nat
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