# Petition for Writ of Certiorari — Schroder v. Bush > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0771%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2002 - **Citation:** 534 U.S. 1083 ## Text | ) 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fore- closures until parity pricing principles, declared to be the underlying law of U.S. agriculture in 1933 and never repealed or suspended, were enforced in the United States.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 ee We tee kuewy bee obeeokeeseean 19a nS OE OM hs is ise seen bene vie weesseseceeevete 19a es ee ods ced ce VEGU MU awe tebe bceeseeens 19a Ce ee, OD ob xs hawbe 00s «00 60 en ccevevéavvs 19a 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0771%3A1. Public record. Not legal advice.