YAKUS AND THE ADMINISTRATIVE STATE. (2024)

INTRODUCTIONI. THE OUTWORKS OF AN ELABORATE STRUCTURE: ADMINISTRATIVE LAW, CIRCA 1940II. THE NEW DEAL GOES TO WAR A. The Emergency Price Control Act: Origins and Structure B. The New Dealers' DefenseIII. THE BEEF OVER BEEF PRICES A. The OPA Goes to Work B. Regulating Meat C. Litigation 1. EPCA Proceedings 2. Equitable Relief: Lockerty 3. Criminal Defenses: Yakus D. Yakus in the Supreme Court 1. The Briefs 2. The Court Decides 3. The Majority Opinion 4. The Dissents E. And in the EndIV. CONCLUDING REMARKS: THE LEGACY AND Lessons of Yakus A. Yakus v. United States: Dialectics B. The Lessons, Perhaps, of Yakus

INTRODUCTION

On February 24, 1943, a grand jury in Boston indicted Albert Yakus,president of the Brighton Packing Company, for selling beef in violationof the Emergency Price Control Act of 1942 (the "EPCA"). (1)The indictment was part of the Office of Price Administration's("OPA's") aggressive enforcement campaign to suppress thevast black market in meat that developed during the war as a result ofOPA's price control regulations. (2)

OPA's regulations imposed a particularly heavy toll on meatpackers. (3) OPA controlled the price of wholesale and retail meat--butnot of livestock. (4) The result was a "price squeeze":unregulated livestock prices kept rising, but regulated meat dealerscould not raise prices in response to higher costs. (5) Smallindependent meat dealers like Albert Yakus were forced to choose betweenfacing criminal sanctions for selling "overpriced" meat, orobeying the regulations and going out of business. (6)

In Congress and in the halls of the New Deal bureaucracy, the meatdealers complained that they were being squeezed out of existence byOPA's price regulations. They also fought back in court, and theirvarious challenges to OPA's regulations and to the EPCA reached theSupreme Court on several occasions.

Yakus v. United States was the final, most significant challenge.The meat dealers argued that any statute had to provide criminaldefendants with some effective means of testing, in an independentcourt, the validity of a rule under which they were being prosecuted.(7) The EPCA, they argued, violated that cardinal principle. In anopinion authored by Chief Justice Harlan Fiske Stone, the Supreme Courtroundly rejected the meat dealers' contentions. Petitioners, theCourt declared, had failed to exhaust the administrative remediesprovided by the EPCA. (8) Thus, the fact that the statute categoricallybarred courts from entertaining challenges to OPA's regulations inenforcement proceedings posed no constitutional problem. (9) AlbertYakus, a highly respected member of the local community and leader ofhis synagogue, went to jail. (10)

This Article recounts the story of Yakus v. United States inconsiderable, often depressing detail. The enterprise, we readilyacknowledge, may seem of interest mostly to legal historians, ratherthan doctrinally or practically oriented scholars. Yakus is little morethan a footnote cite in current Constitutional Law textbooks, (11) and ahiccup in the standard Federal Courts curriculum. (12) And so far as theadministrative law profession is concerned, the case seems to haveslipped down a memory hole. Textbooks and treatises mention Yakus as acase about the exhaustion of administrative remedies, (13)pre-enforcement review, (14) or similar issues (15)--but always inpassing. As for the case law, stray cites aside, Yakus has figured inonly a handful of Supreme Court decisions. (16) Nevertheless, wepersist. Our close examination aims to show that the near-forgottenYakus case should command attention in the contemporary, ideologicallyfraught debate over the administrative state and its law.

Yakus v. United States arose over an extraordinary statute--averitable monument to the New Dealers' vision of the administrativeprocess and administrative government. As we shall show, (17) the EPCAentrusted OPA with virtually boundless discretion to set prices acrossthe entire economy. Its administrative procedures were designed tofrustrate regulated parties while presenting a mirage of fairness. Andthe statute's judicial review provisions were carefully calculatedto block effective judicial review--even as the statute mobilizedfederal and state courts to enforce OPA's dictates. Arguably,Congress had enacted comparable provisions in earlier statutes, and theSupreme Court had sustained those enactments. But the EPCA'sindividual mechanisms and provisions had never been presented, let alonebeen judicially sanctioned, in combination, and in a form thatthreatened to accomplish what Congress and the Executive may not dodirectly: sport away the rights of individuals, and make the courtsaccomplices in the enterprise. That, at bottom, was the meatdealers' principal contention in Yakus. (18) Their challengefailed; and because it failed, the EPCA's innovations and inparticular the foreclosure of judicial review in enforcement proceedingsbecame standard tools of administrative government.

Closer examination reveals a subtler but to our minds equallyconsequential aspect of the Yakus litigation. The preceding thumbnailaccount of the statute suggests the range of the constitutionallygrounded administrative-law doctrines that were implicated in Yakus: theseparation of powers and delegation; due process; and judicial review.Contemporary law provides separate, compartmentalized answers to thosedoctrinal questions: an "intelligible principle" ofdelegation; (19) procedural requirements for administrative rulemaking;(20) and a presumption of reviewability, (21) coupled with judicialdeference canons. (22) Yakus, however, was litigated against aconstitutional understanding under which all the doctrinal answers stillhung together, as mutually reinforcing "outworks of an elaboratestructure" that buttressed "the supremacy of the law."(23) That understanding was not rigidly formalist: there could be somegive in this or that doctrine, provided that the overarching purposeremained in view. Wrenched out of that context, however, the limitingdoctrines cease to be integral parts of a recognizable constitutionalstructure. It then becomes harder to see their point or purpose. Todisjoin the doctrines is to render them marginal and in the endnugatory.

That, we shall endeavor to show, makes Yakus a milestone in whatProfessor Adrian Vermeule has called "Law's Abnegation,"meaning the surrender of effective legal constraints on administrativediscretion. (24) The combatants at the time understood the pointperfectly well. The EPCA's architects defended its unprecedentedcombination of administrative instruments--broad delegation, bare-bonesprocedures, the separation of the courts' review and enforcementfunctions--by way of compartmentalizing the limiting constitutionaldoctrines. The meat dealers' challenge was a last-ditch effort tokeep the pieces of the older order together. It failed: the Yakusmajority fully embraced the New Dealers' administrative processmodel. The victory was sufficiently triumphant to make us forget whatthe fight was actually about.

Our exhumation of Yakus proceeds in four Parts. Part I reconstructsthe legal universe as it presented itself to the EPCA's architectsand, in short order, to the parties in incessant litigation over thestatute, including the Yakus case.

Part II describes the origins and contours of the EPCA, as well asits architects' legal defense of the statute, one piece at a time.Part III recounts the OPA's aggressive enforcement campaign;Congress's sporadic and, by and large, f*ckless interventions; themeat dealers' desperate, multi-pronged litigation, culminating inYakus; the Supreme Court's decision and opinions in the case; and,in the aftermath, the demise of the OP A after the war.

The concluding Part IV sketches our thoughts on the legacy of Yakusand its lessons for the contemporary administrative law debate. Webelieve that the conflict between the integrated constitutional view ofthe (pre-)New Deal Era and the disaggregated approach of the postwar,post-APA decades remains--or rather should remain--an enduring questionof administrative law. For scholars who embrace the administrativestate, Yakus should regain its status as a milestone in themarginalization of constitutionally grounded doctrines. (25) For thosewho entertain apprehensions about an "unlawful" administrativestate, (26) the case suggests the same lesson in reverse: there may belittle mileage in agitating for the revision of discrete doctrinesunless one can somehow re-connect the constitutional pieces.

I. THE OUTWORKS OF AN ELABORATE STRUCTURE: ADMINISTRATIVE LAW,CIRCA 1940

Yakus lies at the end of a history of judicial efforts, spanning arough half-century, to accommodate a growing administrative state to theconstitutional order. The demands of that order are distilled infamiliar propositions: only the legislature can make law--that is, ruleswith binding effect. (27) In matters of private right, citizens musthave access to an independent court and its de novo judgment. (28) Rollthe tape; cue Marbury v. Madison. (29)

In constitutional practice, these rock-bottom propositions can andmust tolerate a fair amount of slack and doctrinal blurriness. Thejurisprudence of the nineteenth century provides impressive evidence ofthe difficulties that surround the scope of enumerated powers, (30) thedelegation of legislative authority, (31) the notion of "privateright," (32) the characteristics of industries "affected witha public interest," (33) and other concepts and doctrines that arecentral to the constitutional order. Still, institutional innovationsthat may seem dubious from a rigidly formalist vantage may well bebearable so long as constitutional principles are kept in view--and solong as those principles are understood as interconnected elements of acoherent constitutional order.

This frame of mind informed the jurisprudence of the earlytwentieth century, when the courts sought to accommodate regulatorycommissions to the constitutional structure. Famous cases from theProgressive to the New Deal Era illustrate the point. Regulatoryagencies may engage in ratemaking, the Supreme Court held--provided thatthe regulated entities have access to timely and effective judicialrelief. (34) Congress may entrust fact-finding to an administrativeagency, even in matters of private right--provided that questions of lawand of constitutional fact and jurisdiction remain subject tofull-scale, de novo judicial review in an independent court. (35)Congress may delegate to an independent agency the power to enforceprohibitions against "unfair trade practices"--provided thatthe agency proceeds in a fair and orderly fashion that permitsmeaningful judicial review. (36)

These positions were embodied in a series of doctrines: aconstitutional due process doctrine, the Ex Parte Young doctrine, the"constitutional and jurisdictional fact" doctrine of Crowellv. Benson, and the non-delegation doctrine of Schechter Poultry. InProfessor John Dickinson's apt phrase, those doctrines were"but the outworks of an elaborate structure devised to buttressfrom different sides the central doctrine of the supremacy of thelaw." (37) Though fraying and weakened by the New Deal, this"elaborate structure" would survive the 1930s. In Yakus,though, each of its "outworks" came under attack-and crumbled.A rough survey of the legal landscape circa 1940 helps to understand thesignificance of the case, both as it presented itself to the principalactors at the time and with an eye to its role in the development ofadministrative law.

The legal doctrines of the pre-New Deal Era were heavily influencedby the concept of the "supremacy of the law." (38) In AlbertVenn Dicey's influential (though ultimately ill-fated) account, the"supremacy of the law" converged on two principles:"every citizen is entitled, first, to have his [private] rightsadjudicated in a regular common-law court, and, secondly, to call intoquestion in such a court the legality of any act done by anadministrative official." (39) In the ordinary case, this entailedaccess to an independent court and de novo review (typically, a fulltrial). (40)

In confrontations between Dicey's supremacy of the law and theregulatory commissions, an "appellate review" model ofjudicial review gradually took hold. (41) The model allowed agencies toact as primary fact-finders in licensing or rate-making schemes, subjectto stringent formal procedures and pre-enforcement judicial review onthe record. (42)

The appellate model soon found influential intellectual support inthe scholarship of Professor John Dickinson. (43) Under Dickinson'sconception of the "supremacy of the law," only pure questionsof law were to be reviewed de novo; judicial review of questions of factcould properly be limited to a record and reviewed under a deferentialjury standard. (44) According to Dickinson, this arrangement would allowjudges to focus on general principles of law, while leaving to agenciesmatters of detail and evidence. (45)

Dickinson's arguments played off of the anxieties of thebench: judges increasingly worried that judicial forays intoadministrative rate-making schemes would transform the courts into highcommissions for the administrative state. (46) Even so, for many juristsat the time, independent judgment merely as to questions of law wasinadequate. (47) By removing fact-finding from the province of thecourts, the appellate review model threatened to expose the courts to"unscrupulous administrators," and to turn federal courts intorubber stamps for the executive branch. (48) The key distinction betweenlaw and fact was hardly airtight, so finality as to agency findings offact could easily shade into finality as to agency determinations oflaw--"pure executive regulation." (49) As John Dickinsonexplained:

"[T]he tendency toward pure executive regulation takes theform of an effort to require the courts to treat the order or decisionof the executive body as final and enforce it without looking behind itto the merits. Should this effort succeed, the action of the courtswould become in such cases merely an automatic stage in the executiveprocess, and they would be reduced to formally registering, anddirecting the enforcement of, executive decrees." (50)

The federal courts developed several safeguards against thisscenario. First, they moved to preserve judicial review through astructural "due-process" doctrine. (51) Second, and relatedly,courts reviewed agency action through equitable anti-suit injunctionswhen legal remedies were perceived to be inadequate. (52) Third, theSupreme Court developed a doctrine of "constitutional andjurisdictional facts" to preserve judicial fact-finding powers onimportant questions. (53) Once "at the center of administrativelaw," (54) this doctrine allowed courts to review critical factualfindings in cases of private right de novo. (55)

The first strategy is exemplified by the Supreme Court's 1890decision in Chicago, Milwaukee & St. Paul Railway Co. v. Minnesota.(56) The Minnesota legislature had vested the Railroad and WarehouseCommission with final and unreviewable power to promulgate railroadrates. (57) The Supreme Court declared the act void, holding that thelegislature had violated due process of law by delegating power to thecommission while failing to provide for judicial review of confiscatoryrates. (58)

The second strategy is exemplified by Ex Parte Young. (59) Decidedin 1908, Ex Parte Young upheld the validity of an anti-suit injunctionagainst Minnesota's Attorney General Edward Young, restraining himfrom instituting criminal proceedings under a statute that made ordinaryjudicial review of the railroad commission's regulations well-nighunavailable. (60) Ex Parte Young confirmed that state officials could besubjected to anticipatory proceedings in equity when an administrativescheme failed to provide timely and effective judicial review of agencyregulations. (61)

The third strategy, the "constitutional fact" doctrine,is often traced to Smyth v. Ames. (62) As articulated in a later case,courts had a duty to exercise their "independent judgment" todeter mine facts when a petitioner alleged a constitutional violation.(63) At the dawn of the New Deal Era, this doctrine had come intoconsiderable tension with a growing number of public utility cases inwhich courts had reviewed agencies' factual findings quitedeferentially. (64) Perhaps for that reason, the doctrine found itscanonical formulation in a case involving an ordinary workers'compensation dispute: In Crowell v. Benson, the Supreme Court reviewedan order of a federal workers compensation commission finding anemployer liable for an employee's injuries in the course ofriverboat work. (65) Writing for the majority, Chief Justice Hughesarticulated a distinction between constitutional facts and ordinaryfacts. (66) Review of ordinary facts--such as the extent of theworker's injury--could be limited to the administrative record. Incontrast, questions of constitutional fact--whether the accidentoccurred on waters of the United States, or whether the worker wasactually in the defendant's employ--would be reviewed de novo. (67)Federal judges could supplement the record by holding hearings, byallowing in extrinsic evidence, or by ordering full-scale trials onthese issues. (68)

Despite this attempt at judicial reconciliation, the"supremacy of the law" remained in tension with the emergingappellate review model. The tension is illustrated by St. Joseph StockYards, (69) a case decided at the height of the New Deal. In the courseof upholding a regulation by the Secretary of Agriculture settingmaximum rates for stockyards, Chief Justice Hughes reaffirmed Crowelland confirmed its application to "quasi-legislative" (i.e.,regulatory) proceedings. (70) In cases involving "rights either ofpersons or of property [that are] protected by constitutionalrestrictions," Hughes wrote, courts had a duty to examineconstitutional findings de novo. (71) Justice Brandeis, by contrast,urged the court to adopt the appellate review model withoutreservations. (72) Even under Brandeis's approach, however,"[t]he supremacy of law demands that there shall be opportunity tohave some court decide whether an erroneous rule of law was applied; andwhether the proceeding in which the facts were adjudicated was conductedregularly." (73) Facts could be surrendered to administrativeagencies; law could not.

The interrelated doctrinal "outworks" just described, allimplicated in the EPCA and in Yakus v. United States, hung together witha fourth doctrine that would also meet its denouement in thatlitigation: the delegation of legislative power. In the contemporarylegal imagination, that problem seems several steps removed fromquestions regarding administrative procedure and the timing,availability, and standard of judicial review. The modern delegationtest is whether Congress has supplied an "intelligibleprinciple," and neither the availability of review nor, for thatmatter, the regularity of the agency's procedures or its checks andbalances is a systematic, integral part of that inquiry. (74)

This constricted view, however, is a post-Yakus construct. In the1930s, the questions were still linked through a straightforward logic.Congress, the theory went, may authorize specialized agencies to makebinding rules. (75) Such delegations, however, require fair, regularagency procedures and meaningful judicial review on the record. The"principle" supplied by Congress must be sufficiently"intelligible" for a reviewing court to discern whether or notthe agency has acted within the scope of its legal authority. Thosestructural concerns, closely linked to due process and the separation ofpowers, are articulated in A.L.A. Schechter Poultry Corp. v. UnitedStates and in Panama Refining Co. (the "Hot Oil" case), twoseminal cases decided in 1935--three years after Crowell and one yearbefore St. Joseph Stockyards. (76)

Hot Oil struck down Section 9(c) of the National IndustrialRecovery Act (NIRA) as unconstitutional. (77) As part of its"non-delegation" holding, the Court insisted on the need forprocedural regularity, observing that "the Legislature, to preventit* being a pure delegation of legislative power, must enjoin upon [theagency] a certain course of procedure and certain rules of decision inthe performance of its function." (78) The Court also reaffirmedthe constitutional need for judicial review of agency findings of fact.(79) In Schechter, too, the Court affirmed the importance of regularadministrative procedure to sustain delegations. The NIRA did notrequire any reviewable findings of fact to limit official discretion,and it provided no regular course of administrative procedure to securedue process. (80) Moreover, in response to the government'sargument that the Court had sustained comparably broad delegations (forexample, to the Federal Trade Commission), the Schechter Court notedthat the open-ended, prescriptive nature of the NIRA's codes of"fair competition" rendered them suspect, delegation--and dueprocess-wise, in a way in which the FTC's more conventional,proscriptive orders against unfair competition were not. (81)

Schechter's signal, though poorly understood today, wasapparent to many New Dealers: the Supreme Court was willing toaccommodate New Deal demands, but only under arrangements that preservedthe judiciary's role as a rival check. The statutes governing theFTC and the SEC, both discussed approvingly in Schechter, provided theNew Deal with a blueprint, which Roosevelt's lawyers used to draftthe National Labor Relations Act (NLRA). (82) In NLRB v. Jones &Laughlin Steel Corp., the Court upheld the NLRA not only against aCommerce Clause challenge (the best-known part of the case), but alsoagainst due process and separation-of-powers attacks. (83)

The attempted compromise proved short-lived: leading New Dealersharbored grander visions of the administrative state. In his influentialbook, The Administrative Process, Professor James Landis launched afrontal assault on lingering "supremacy of the law" notions.(84) Landis attacked Crowell as "syllogistic" reasoningstemming from the anxieties of the judicial "class." (85) Hisgoal was to replace the supremacy of the law with the"administrative process." Instead of applying"essentialist" separation of powers concepts, judges wouldexercise judicial review in light of the comparative"expertness" of administrators, "the procedureemployed" by the agency, and judicial notions of"fairness" and expediency. (86) As Roosevelt appointees cameto dominate the Supreme Court and the appellate courts, that vision ofthe administrative process gained ground in judicial opinions. In a 1939opinion, Justice Douglas praised the "valuable qualities" ofthe "administrative process" in Landis-like fashion:"ease of adjustment to change, flexibility in light of experience,swiftness in meeting new or emergency situations." (87) Shortlythereafter, Justice Stone announced the "cardinal Principle[]"that "court and agency are not to be regarded as wholly independentand unrelated instrumentalities of justice .... Court and agency are themeans adopted to attain the prescribed end, and so far as their dutiesare defined by the words of the statute, those words should be construedso as to attain that end through coordinated action." (88) In thesame vein, Justice Frankfurter admonished that "although theadministrative process ... pursues somewhat different ways from those ofcourts, they are to be deemed collaborative instrumentalities ofjustice[.]" (89) This "collaborative" vision well-nighinvited "pure executive regulation" and left little if anyroom for judicial review as a rival, independent check.

That vision triumphed in Yakus, and perhaps, that had to happen. Inretrospect, the formula of Ex Parte Young and Crowell and Schechterseems unstable. (90) Already by the time of Yakus, a vastly expandedCommerce Clause had swept aside the jurisdictional-cum-constitutionalquestions that had loomed large in 1932, (91) and the Supreme Court hadupheld many broad delegations. (92) However, answers that now look likeforegone conclusions were still open questions at the time. The NewDealers were well aware of the constraints posed by lingeringsupremacy-of-law doctrines. The EPCA was a frontal attack on all ofthose doctrines and an embrace of pure executive regulation. Part IIdescribes the statute and the New Dealers' defense.

II. THE NEW DEAL GOES TO WAR

A. The Emergency Price Control Act: Origins and Structure

As War World II approached, President Roosevelt took steps toprepare for inflation. Roosevelt appointed Leon Henderson, a former SECcommissioner, to head a Price Stabilization Division within the NationalDefense Advisory Commission ("NDAC"). (93) Henderson, in turn,hired young David Ginsburg as his chief legal advisor. (94) Ginsburgwould be the key drafter of the statute at issue in Yakus. (95)

Without statutory authorization to promulgate binding pricecontrols, NDAC published its first "advisory" price regulationon February 17, 1941. (96) By August 1941, NDAC had issued 105"advisory" price schedules. (97) On May 31, 1941, theAdministration also acquired the power to ration strategic commodities.(98)

Shortly thereafter, Congress granted the President broad powers toration ordinary goods, including meat. (99) Seeking to centralizerationing and price control functions in a single agency, PresidentRoosevelt created the Office of Price Administration and CivilianSupply, later known as OPA. (100)

But OPA still lacked statutory authority to promulgate bindingprice controls. Ginsburg and Henderson accordingly drafted a bill thatwould give OPA that power. But their draft went considerably further: itplaced district courts at OPA's disposal for enforcement purposes,while making OPA's regulations effectively unreviewable. As acongressional committee would later find, "one of the purposes ofthe legislation which they drafted was to place, so far as possible,final and nonreviewable power and authority in the hands of theAdministrator to be created by the proposed legislation." (101) Thedraft was submitted to Congress in August 1941, approved by Congresswith minor modifications, and signed by the President on January 30,1942. (102)

As the timing suggests, Congress enacted the EPCA in response tothe perceived exigencies of war. However, the EPCA was not a product ofwartime hysteria; it was a deliberate political and institutionalchoice, crafted by skilled New Deal lawyers. (103)

First, the statute incorporated the political economy principles ofthe New Deal. It embodied a demand-centered economic theory that, whilenow widely viewed as seriously misguided, was deeply engrained in NewDeal thinking. (104)

Second, the EPCA reflected fateful political compromises toaccommodate potent New Deal constituencies. One of them was labor.Unions were prepared to support the price control bill, if OPA wasdenied jurisdiction to control wages. (105) A second formidableconstituency was the farm bloc. Accommodating farmers was no smalldifficulty, especially inasmuch as inflating food prices had been thegoal of earlier New Deal farm programs. (106) Congress yielded tofarm-group pressures: the final bill included a (110)% parity guarantee,which in effect prohibited OPA from controlling prices set by farmersand ranchers. (107) This guarantee would trigger the market disruptionsthat eventually led to the litigation in Yakus. (109)

Third, and most important for present purposes, the EPCA enshrinedthe New Dealers' institutional commitments--foremost, an abidingfaith in bureaucratic expertise and a corresponding, unremittinghostility to markets, interloping courts, and the separation of powers.The executive's proposed bill combined vast grants of executivediscretion with a set of administrative and appellate review proceduresthat, while not entirely unprecedented, were wholly new in combination.(109) That choice did not go unnoticed in Congress. A bill sponsored bySenator Robert Taft would have authorized OPA to issue temporaryregulations lasting sixty days without a hearing, but otherwise requiredOPA to institute formal rulemaking procedures before promulgating arule. (110) The Taft bill was never brought to the floor. (111) Instead,Congress enacted the executive's proposed statute.

The EPCA's institutional design rested on four foundations.First, the EPCA gave OPA, acting under an exceedingly broad delegation,the power to promulgate binding regulations. (112) Second, the EPCAchanneled all regulatory challenges through an administrative procedurethat was designed to delay judicial relief. (113) Third, the EPCA gave anewly created Emergency Court of Appeals exclusive jurisdiction toadjudicate challenges to OPA's regulations. (114) Fourth, the EPCAplaced the regular courts at OPA's disposal for enforcementpurposes, even while the regulations were being challenged through theadministrative process or in the Emergency Court. (115) The provisionsmade OPA's regulations binding in the courts, even in criminalcases, without a meaningful opportunity for judicial review. (116)

Title I of the Act set out the purposes of the statute andOPA's powers. Section 1 provided a broad statement of congressionalpurposes, including "stabilizing] prices"; protecting the"standard of living" of "persons with relatively fixedand limited incomes"; promoting "fair and equitablewages"; permitting cooperation between producers and thegovernment; ensuring that defense appropriations were not"dissipated by excessive prices"; and "eliminating] andpreventing] profiteering, hoarding, manipulation, speculation, and otherdisruptive practices." (117) Section 2 granted the Administratorthe power to issue "generally fair and equitable" pricecontrols "[w]henever in [his] judgment ... the price or prices of acommodity or commodities have risen or threaten to rise to an extent orin a manner inconsistent with the purposes of this Act." (118)Section 4 of Act gave OPA regulations and orders the force of law. (119)

Title II of the Act set out the administrative procedure, judicialreview, and enforcement provisions of the EPCA. Section 205 gave broadenforcement powers to OPA and to consumers harmed by inflation. (120)OPA could sue violators for injunctive relief and treble damages, ascould aggrieved consumers. (121) OPA was also granted licensing andsuspension powers, (122) and OPA could petition the Attorney General tobring criminal actions in district court to punish "willful[]"violations of OPA regulations or orders. (123)

Sections 203 and 204 set out the administrative procedure andjudicial review mechanisms of the Act. As Justice Rutledge explained indissent, the administrative process consisted of "short-cutproceedings, trimmed almost to the bone of due process, even for whollycivil purposes, and pared down further by a short statute oflimitations." (124) While the EPCA required OPA to publish a"statement of ... considerations" alongside a regulation,(125) it did not require OPA to make any reviewable findings. (126) TheEPCA allowed administrative protests to be filed only "within aperiod of sixty days after the issuance of any regulation or orderunless based solely on grounds arising after the expiration of suchsixty days." (127) Upon denying a protest, OPA was required tostate the grounds for its denial. (128) Once OPA denied a protest, thechallenger could bring suit in the Emergency Court of Appeals, whichcould set aside OPA's regulations if they were "arbitrary orcapricious" or "not in accordance with law." (129) Atthat point, however, regulated parties had no opportunity to presentadditional evidence to the court. (130)

OPA had broad discretion to delay its decision on a protest--evenwhile it brought suits to enforce its regulations in court. (131) OPAmade ample use of that discretion. (132) In practice, most sellers wereprosecuted before the Emergency Court ever reached a decision on themerits. (133) That new court was staffed with New Deal judges whopractically never set a regulation aside. (134) In any event, the burdenof proving the invalidity of a regulation in the Emergency Court at alltimes rested with the party protesting the regulation. (135) Achallenger had the burden of showing that a regulation was not"generally fair and equitable" or did not promote any of thevague purposes of the Act. In practice, then, the EPCA foreclosedwell-nigh all meaningful judicial review of price regulations in theEmergency Court. (136)

At the same time, Section 205(c) vested federal district courts,state courts, and territorial courts with jurisdiction over OPA'scriminal enforcement actions. Section 204(d) simultaneously divested"Federal, State, or Territorial" courts of "alljurisdiction or power to consider the validity of any such regulation,order, or price schedule" and "to restrain or enjoin theenforcement of any such provision." (137)

The scope of Section 204(d) was breathtaking. On its face, theprovision allowed for what Professor Dickinson had called "pureexecutive regulation": if OPA brought a criminal prosecution,judges had to treat the regulation "as final and enforce it withoutlooking behind it to the merits." (138) Enforcing courts were thus"reduced to formally registering, and directing the enforcement of,executive decrees." (139)

The EPCA's review-stripping provision was so broad thatSolicitor General Charles Fahy took the extraordinary position (beforethe Supreme Court) that OPA could bring criminal cases to enforce rulesthat had been set aside by the Emergency Court, as long as theunderlying violation happened before the regulation was finally setaside. (140) On that theory, a defendant could prevail on the merits inthe Emergency Court and still remain subject to a subsequent criminalsuit to enforce an invalidated regulation. This position was notentirely fanciful: it was accepted by the Court of Appeals for the FirstCircuit. (141)

This highly unusual set of institutional arrangements demanded acareful legal defense. EPCA's architects had worked it out, longbefore Yakus.

B. The New Dealers' Defense

According to Peter H. Irons's masterful account, early NewDeal statutes often foundered in the Supreme Court due, in no smallpart, to inartful drafting and lawyering. (142) The Yakus litigationpresents a very different picture. The New Deal lawyers had learnedtheir lessons from prior defeats (such as Schechter and Hot Oil). In theEPCA, they combined ideological ambition with careful--ifa*ggressive--lawyering. Moreover, by the time of Yakus, the federaljudiciary was composed predominantly of Roosevelt appointees, and thelawyers could claim the benefit of some favorable precedents. (143)

For all that, the New Dealers recognized that the EPCA'sdefense would require a bit of work. The Act's combination ofreview-preclusive mechanisms had never been tested. Its unboundeddelegation to OPA without any real procedural safeguards ran up againstSchechter; the limitation on judicial remedies, against Ex Parte Young;and the limitations on judicial review, against Crowell v. Benson and,by implication, Marbury. The EPCA architects' response was bothsimple and ingenious lawyering: instead of defending the law as a whole,they defended the statute provision-by-provision andprecedent-by-precedent. Viewed in isolation, the provisions of the lawwould seem less revolutionary, perhaps even ordinary.

The EPCA's architects set out their strategy in a symposiumheld at Duke Law School in 1942. OPA General Counsel David Ginsburgdiscussed the EPCA's general framework. (144) Nathaniel Nathanson,Assistant General Counsel for OPA, presented the strategy to defend theadministrative procedure and review provisions; (145) AssistantSolicitor General Paul Freund, the strategy to counter delegation andfair-return challenges. (146)

Professor Nathanson rested his case on (now textbook) principles ofadministrative law. The promulgation of "generally fair andequitable" price regulations, he observed, involved questions oflegislative fact; therefore, under the venerable case of Bi-MetallicInvestment Co. v. State Board of Equalization, (147) no trial-likehearing was required. (148) To sidestep Section 204(d)'s Marburyproblem, Nathanson relied chiefly on the exhaustion doctrine articulatedin Myers v. Bethlehem Shipbuilding Corp. (149) In that case, BethlehemShipbuilding had sought to restrain the Board from holding adversarialhearings on the company's allegedly unfair labor practices. (150)Bethlehem Shipbuilding argued that the statute violated the CommerceClause and asserted that the NLRB hearing itself would cause the company"irreparable damage." (151) The Supreme Court found thecompany's contention "at war with the long settled rule ofjudicial administration that no one is entitled to judicial relief for asupposed or threatened injury until the prescribed administrative remedyhas been exhausted." (152) Nathanson seized on this ruling to arguethat the EPCA's review-stripping arrangement "merelycodifie[d] the usual rule of exhaustion of administrativeremedies." (153)

Paul Freund took on the fair return and Ex Parte Young doctrines.Section (4)(d) of the EPCA provided that no person was"require[d]" to "sell any commodity." (154) Thepurpose of this seemingly odd provision was to defeat "fairreturn" claims. According to Freund, Ex Parte Young and Ben Avondid not apply to price controls outside the common carrier context:although regulated utilities had an affirmative duty to provide publicservices, private sellers had no such duty. (155) Moreover, unlike in ExParte Young, Freund argued, the EPCA allowed challengers to assert theirdefenses in a non-criminal forum. (156)

These arguments were hardly airtight. Nathanson's argumentthat Crowell was irrelevant to legislative rules contradicted theSupreme Court's opinion in St. Joseph Stockyards. (157)Freund's theory that the fair return doctrine applied exclusivelyto regulated utilities was flatly contradicted by Chief JusticeHughes's concurring opinion in Carter Coal, (158) and his argumentthat Ex Parte Young did not apply manifestly misstated the rationale ofthat case. (159) Nor, contrary to Nathanson, did Bethlehem Shipbuildingvalidate EPCA. As the Supreme Court emphasized, the NLRB held hearingsand created a record, and its orders were not binding until a court oflaw entered a final judgment enforcing the NLRB's orders. (160) Allof those safeguards were lacking in the EPCA. (161) Moreover, theexhaustion doctrine announced in Bethlehem Shipbuilding merely preventeda pre-enforcement challenge in equity, not a defense in an enforcementaction. (162)

The short of it is that no Supreme Court case had ever held thatanything roughly analogous to the EPCA's jurisdiction-strippingframework would be constitutionally "adequate" under the DueProcess Clause. (163) Shortly after the war (and after Yakus wasdecided), Nathanson acknowledged the pioneering nature of the statute heand others had been tasked with defending. (164) Unlike prior statutes,he observed, the EPCA "contemplated the enforcement of price andrent regulations in the regular courts even while their validity wasbeing challenged in the Emergency Court of Appeals." (165)Moreover, "unlike ... other statutes, there was no way in which thecourts could suspend operations of [EPCA] regulations while theirvalidity was contested." (166) Thus, prior precedents "[did]not entirely meet ... the due process" challenge to the statute.(167) The statute did break new ground, after all--and so would theYakus decision. Part III chronicles the litigation and describes thedecision.

III. THE BEEF OVER BEEF PRICES.

Yakus v. United States was part of a dramatic, fast-paced story.Some two years lay between the enactment of the EPCA and the SupremeCourt's decision in Yakus. Another two years later, the war wasover, price regulation had lost public support, and a differentpolitical climate produced the APA's settlement. In some ways,Yakus was a replay of Schechter--a constitutional attack on a massiveregulatory scheme, brought by small ethnic middlemen in defense to aprosecution. Schechter, however, was a test case litigated in part bythe whitest of white shoe New York law firms, financed by corporateinterests with the hope of arresting the New Deal's ambitions, andbrought to a Supreme Court that was likely to be receptive to thechallengers' legal arguments. (168) Yakus differs in all thoserespects. There is something desperate about the meat dealers'opposition to an administrative regime that threatened their veryexistence, about their pleas for legislative and regulatory relief, andabout their attempts to obtain judicial protection under a statute thatforeclosed all conventional avenues of relief. Yakus must be understoodagainst this backdrop.

A. The OPA Goes to Work

Price Administrator Leon Henderson and his OPA staff pursued theirprice control mission with enthusiasm. (169) A veritable army of lawyersand economists enlisted in OPA's price control mission. (170) Theirtask was daunting. As an OPA economist put it, price control"necessitate^] replacing the myriad of price decisions made bythousands of individual buyers and sellers in peacetime with thejudgments of a relatively few government experts." (171) Undaunted,OPA imposed nationwide price controls on almost every consumercommodity.

Tasked with the role of choosing some objective standard toimplement Congress's instruction that price controls be"generally fair and equitable," Henderson decided to use ahistorical benchmark and to fix prices at a level that would allowindustry to realize the same level of profits as it did duringpeacetime, despite the much greater demand. (172) OPA soon settled onthis "overall industry earnings" standard (industry net incomebefore taxes, compared to historical industry profits for the 1936-1939period) and rejected the "cost plus a fair profit" standardchampioned by Bernard Baruch, the World War I price control tzar. (173)The "overall industry earnings" standard gave OPA flexibilityto set prices for entire industries without worrying about the financialviability of marginal producers. (174) Henderson promised, however, that"if a particular product in a multiproduct industry was subject toa maximum price which was below the current industry cost attributableto that product, the maximum price would be increased to cover suchcost." (175)

Problems that would have afflicted even the most sophisticatedsystem of price controls were exacerbated by the Administration'scrusade against wartime profiteering. (176) In 1943, Roosevelt orderedall executive agencies to work to freeze all wages, rates, and pricesacross the entire economy at prewar levels to combat inflation. (177)Each and every price increase was prohibited, "regardless ofwhether it would be justified by cost or productivity increases andregardless of its distributional effects." (178) As noted, though,(179) these requirements were subject to exceptions for the farm blocand other influential interests. Far from ameliorating the generalsituation, these exceptions compounded the distortions created byOPA's price controls. As Joseph A. Schumpeter scornfully observedat the time, "unless intended to force the surrender of privateenterprise," OPA's system of price controls and exemptions was"irrational and inimical to the prompt expansion of output."(180) Among the most severely affected economic sectors was the meatindustry.

B. Regulating Meat

OPA's meat regulations unfolded in stages. For those whoactually knew the meat industry, it was "a foregone conclusion thatprice ceilings would not work well." (181) For OPA officials, incontrast, it was a foregone conclusion that meat prices had to becontrolled.

The regulation of meat prices began in earnest when PriceAdministrator Henderson issued a General Maximum Price Regulation,freezing commodity prices across the entire economy at the level ofMarch 1942. (182) As OPA's staff eventually acknowledged,"General Max" (as the regulation was popularly known) proved"as disruptive and unsatisfactory to the industry as to theconsumer." (183) Accordingly, in June 1942, Henderson signedMaximum Price Regulation No. 169, a new order regulating beef and vealprices. (184) Both OPA and the meat industry soon came to regard thisregulation, too, as "inadequate." (185) OPA's problem wasthat meat sold by independent packers and slaughterers was sold"without grade designation or on the basis of private gradingsystems" that could be manipulated to avoid price controls. (186)The meat dealers' problem was the continued rise in cattle costsand the resulting price squeeze. (187)

During the summer of 1942, Boston began to experience serious meatshortages. (188) Several meat dealers declared bankruptcy, even asgrocery shops could not meet demand. (189) Four hundred Bostonslaughterers and meat dealers rallied to petition the Administration toplace a price ceiling on cattle. (190) Sidney H. Rabinowitz, (191) thedirector of the New England Wholesale Meat Dealers Association, urgedcollective protest. (192) Harold Widetzy, general counsel for theWholesale Meat Dealers Association and the National Association of Hoteland Meat Purveyors, also urged action in opposition to farmerprivileges. (193)

Independent slaughterers and packers were a political force to bereckoned with. Despite opposition from the Texas and Southwestern CattleRaisers' Association, (194) Congress amended the EPCA in October of1942 to require OPA to provide a "generally fair andequitable" margin for the processing of farm commodities,"including livestock." (195) Upon the enactment of theMcKellar Amendment (as it was called), Wilbur LaRoe, Jr., counsel forthe Independent Meat Packers Association, proclaimed, "Hurrah, ourbattle is done, because Congress has told OPA they have to do it."(196)

LaRoe's enthusiasm was misplaced. On December 10, 1942, OPAissued Revised Maximum Price Regulation 169 ("Rule 169"), thesubject of the Yakus litigation. (197) The rule divided the country intoprice zones and allowed for "dollars and cents" incrementsbased on OPA's geographic estimates of cost. (198) The rule alsorequired meat dealers to follow prescriptive grading standards. (199) Asthe meat dealers later complained, Rule 169 "revolutionize[d] themeat industry by eliminating terms and cuts of meat upon which trade wasfounded and so recognized by custom for so many years." (200)

Rule 169's "statement of considerations" cited toExecutive Order 9250 (requiring OPA to control "profiteering")and per functorily stated that the regulation furthered the purposes ofthe Act. (201) OPA also filed an unpublished study of theindustry's costs alongside the regulation. (202) These costestimates were based on the mistaken assumption that cattle prices wouldnot continue to rise. (203) But rise they did, in response to increasingdemand. (204) And yet: in the face of overwhelming evidence of a pricesqueeze and despite the meat dealers' pleas, OPA refused toreconsider the rule. (205)

As Rule 169 went into effect, several meat industry groups filedprotests before OPA, claiming that the rule and the resulting pricesqueeze violated the terms of the Act. The Armour Company, one ofChicago's "Big Four" integrated packers, was the largestcorporate litigant. (206) The National Independent Meat PackersAssociation, represented by Wilbur LaRoe, Jr., also filed a protest onbehalf of independent packers and slaughterers. (207)

Responding to the protests, OPA replied that the evidence of aprice squeeze was unconvincing. Even assuming that a "squeeze"existed, OPA argued, only "vigorous enforcement" against blackmarket profiteers would redress the problem. (208) OPA then proceeded todelay the beef litigation by prolonging administrative discovery. Itwould take more than two years for the Emergency Court of Appeals toreach a judgment on the merits of the challenge. (209) Throughout thisperiod, Rule 169 remained in effect, leaving many meat dealers with agrim choice of going out of business or into the black market, andpossibly to jail.

Meanwhile, in March 1943, meat packer and independent slaughterergroups appeared before a Senate small business committee. Testifying forthe independent packers, Wilbur LaRoe stated that at present prices,some 25% to 40% of the wholesale meat industry could not make a returnon investment. (210) This price squeeze, he argued, had created theworst black market "in the history of the country." (211) OPAofficials acknowledged that the meat regulations were causingdifficulties, but they continued to insist that vigorous enforcementwould "increase the supply." (212) When Senators asked why OPAwas flouting the McKellar Amendment by failing to take account of risinglivestock prices, Price Administrator Prentiss Brown argued that reliefwas "impractical" because "you would have to change [thecost margin] every day" in response to increasing livestock prices.(213)

Lastly, Sidney Rabinowitz and Harold Widetzky testified on behalfof the New England Meat Dealer Association. Rabinowitz explained thedire situation faced by the independent meat dealers:

 You will find the following situation for our industry, and I speak for New England, and I might as well speak for the entire country, and that is, they either are in jail or they are blowing their brains out; and I think it's a terrible situation. And I think these articles and these newspapers about them engaging in the black market, I think there is nothing to it. It is nothing but men in the industry that are either falling by the wayside and going to jail or into bankruptcy, or, if they have the courage, blowing their brains out. (214)

Albert Yakus would go to jail.

C. Litigation

Meat dealers pursued three avenues to challenge the EPCA andOPA's regulations. First, they availed themselves of the optionprovided by the statute: a protest before the agency and litigationbefore the Emergency Court. Second, they sought relief by means of an ExParte Young challenge. Third, they raised legal defenses against theregulations in enforcement proceedings.

That third scenario, of course, is Yakus. The case, though, must beunderstood in the context and chronology of the other two approaches.The first option, resort to the statutory avenues for legal redress, wasdesigned to fail. It eventually did fail--well after the decision inYakus. (215) However, it played a crucial role in the Yakusmajority's opinion: Congress, it said, had not foreclosed butmerely channeled judicial relief, as surely it could do under itscopious powers. The second option, Ex Parte Young relief, was rejectedby the Supreme Court in Lockerty v. Phillips (216) a week after theYakus defendants had filed their petition for certiorari. Lockertyreserved the precise question presented in Yakus, but it also narrowedthe petitioners' case.

1. EPCA Proceedings

As mentioned, Armour & Co., as well as associations ofindependent wholesale dealers (like Yakus) and independent(non-processing) slaughterers, filed protests before OPA. (217) OPAconsolidated the protests and demanded more evidence of a price squeeze,thus delaying the protestors' right to judicial review. (218)However, one non-processing slaughterer--a defendant in a pendingcriminal proceeding--was actually heard by the Emergency Court, on thequestion of whether the court should issue a writ of mandamus compellingOPA to make a decision. (219) Following the hearing, but before theEmergency Court decided whether to grant the writ, the governmentannounced that non-processing slaughterers (the most vulnerable group)would receive subsidies from the Office of Economic Stabilization. (220)With the subsidy in place, OPA denied all the consolidated protests, andthe litigation started anew before the agency. (221) Parties wishing tochallenge the regulation had to introduce new evidence taking intoaccount the effects of the subsidy program. (222) This additional delaybought time for the Supreme Court to decide Yakus.

2. Equitable Relief: Lockerty

New Jersey meat dealers (represented by Arthur T. Vanderbilt, laterChief Justice of New Jersey's Supreme Court) filed an Ex ParteYoung action against the acting New Jersey United States Attorney,seeking to restrain criminal prosecutions. (223) The meat dealers'complaint alleged that Rule 169 was irrational and oppressive classlegislation and, further, that the threat of criminal sanctions,combined with the Act's defective judicial review procedures,deprived the meat dealers of due process. (224) On March 29, 1943, athree-judge district court panel granted the government's motion todismiss. (225) Judge Guy Fake, a Coolidge appointee, dissented. In hisview, the Act left the plaintiffs "stripped of their constitutionalrights in the only forum where they may be tried on the indictmentspending against them." (226)

The Supreme Court affirmed the district court in May of 1943,holding that it lacked jurisdiction to hear "collateralattacks" against the regulation. (227) The opinion was written byChief Justice Stone over a single weekend, a feat accomplished bypreserving the question presented in Yakus (i.e., whether section 204,barring all courts except the Emergency Court from examining thevalidity of OPA regulations, was constitutional as applied in anenforcement action). (228) The Justices also made short shrift of acase, manifestly contrived by a landlord and his tenant, in which anIndiana district judge had struck down the entire EPCA as a violation ofthe separation of powers. (229) The Supreme Court vacated the judgmentas lacking a genuine controversy. (230) Next on the docket (thefollowing Supreme Court Term) would be Yakus.

3. Criminal Defenses: Yakus

In Boston, an Assistant United States Attorney pressed criminalcharges against Albert Yakus, Benjamin Rottenberg, and their respectivecompanies and agents, charging them with committing several violationsof Rule 169. (231) On February 24, 1943, a grand jury returned theindictment. The meat dealers moved to quash it on several grounds: theprice ceiling established by OPA was an "arbitrary andcapricious" invasion of property rights; Rule 169 was unreasonableclass legislation; OPA had failed to follow proper procedures; and theEPCA violated the separation of powers and due process.

The motions were heard by District Judge Charles E. Wyzanski, Jr.,a consummate New Dealer. (232) Unsurprisingly, Judge Wyzanski denied themotion. After overruling all objections to the statute, Judge Wyzanskiconsidered the dealers' objections to Rule 169. He noted that amotion to quash an indictment is the equivalent of a civil"demurrer," testing the validity of the regulation as it"appears upon its face." (233) "Viewed in this limitedaspect," Wyzanski held, the regulation was "plainly"valid. (234) The United States had urged Judge Wyzanski to hold that theEPCA's Section 204(d) prohibited district courts from reviewing thevalidity of the regulation in an enforcement action. (235) Agreeing withthis position, the judge articulated a distinction, "familiar inthe area of administrative law," between a regulation "invalidon its face" and one "invalid because of circ*mstances of itsadoption or application." (236) Because the regulation was notfacially invalid, Wyzanski continued, he only had to consider whetherCongress could preclude the introduction of extrinsic evidence tosupport an as-applied challenge to a general regulation. (237) As JudgeWyzanski noted, the EPCA's procedures allowed the meat dealers topresent extrinsic evidence before the Emergency Court of Appeals. Viewedin this light, Judge Wyzanski argued, the administrative procedure was"not so novel." (238)

The resulting trial would be a farce, but the meat dealers had togo through the motions to preserve their right to appeal. (239) Duringthe trial in March of 1943, the lawyers for Mr. Yakus offered asevidence the testimony of Sidney Rabinowitz. According to the expertreport, Rabinowitz would show that Rule 169 required Albert Yakus andsimilarly situated meat dealers to sell meat below the cost ofproduction, in violation of the McKellar amendment and the "fairreturn" doctrine. The meat dealers also sought to introduceAdministrator Prentiss Brown's testimony before Congress, in whichhe "admitted" that the meat and veal regulations were not"fair and equitable." Judge Healey, presiding over the trial,excluded all extrinsic evidence under Wyzanski's previous ruling.Albert Yakus was fined $1,000 and sentenced to six months in prison.(240) The meat lawyers filed an exception, and the convictions werestayed pending appeal.

The New England meat lawyers filed their appeal on May 4, 1943, sixdays before the Supreme Court decided Lockerty. Judges Calvert Magruder,John Mahoney, and Peter Woodbury, all Roosevelt appointees, heard theappeal in the First Circuit. (241) On August 23, 1943, the courtrejected the meat dealers' appeal. (242) Judge Magruder'sopinion dismissed the meat dealers' argument by holding that as amatter of law, any evidence showing the invalidity of the regulation was"entirely immaterial" under the statute. (243) Analogizing OPAto a military operation, Magruder extolled OPA's efforts at the"home front" and stressed the need for expediency. (244)Venturing no opinion on the protests pending before OPA, Magruder heldthat the EPCA's provisions were constitutionally adequate, (245)and that the delegation challenge was "not well taken." (246)

D. Yakus in the Supreme Court

The meat dealers filed a petition for a writ of certiorari onSeptember 23, 1943. Despite the lack of a circuit conflict, certiorariwas likely. The Supreme Court had already expressly reserved thequestion presented in Lockerty, and many similar enforcement cases (75to 100, on the petitioners' estimation) were pending in the lowercourts. (247) Confident in his case, Solicitor General Fahy did notoppose the grant. (248) On November 8, 1943, the Supreme Court grantedthe petition and set the case for argument. (249)

1. The Briefs

The briefs for the meat dealers read as a frontal assault on theAct. The petitioners claimed that the statute unlawfully delegatedlegislative power, violated their liberty and property without dueprocess, violated the separation of powers, and violated their sixthamendment right to a jury trial. (250) Echoing Schechter's themes,the meat dealers argued that the Act did not require OPA to makeregulations on the basis of reviewable factual findings and that theprocedural requirements were meaningless. (251) Moreover, the Act gaveOPA broad regulatory latitude while granting its regulations the forceof law, without adequate judicial review. The meat dealers also pointedout that OPA's "statement of considerations" involved noactual findings of fact; the considerations were mere statements ofopinion parroting the language of the statute. (252) The Act provided nomeans of guaranteeing that cases would "be decided according toevidence and the law, rather than arbitrarily or from extra-legalconsiderations." (253) Invoking Marbury, the meat dealers urgedthat "the court has not only the power but the [constitutional]duty to say what the law is." (254)

The petitioners presented the Supreme Court with severalalternative lines of arguments. They argued that the district courtcould at least consider whether the price regulation was reallypromulgated "under" Section 2 of the Act, and therefore withinthe scope of Section 204(d). (255) Alternatively, the meat lawyersargued--in the teeth of the statute--that Congress had not meant todeprive district courts of the power to review OPA's regulations incriminal trials. (256) However, the petitioners continued, if the courtconcluded that Congress had intended that result, Congress had violatedArticle III. (257) Congress could not simultaneously draw the courtsinto the Act's enforcement scheme, while depriving them of thejudicial power "to say what the law is" in particular cases.(258)

Solicitor General Fahy and Paul Freund, briefing for the UnitedStates, argued that the EPCA was entirely unexceptional under thecurrent emergency. Fahy took the position that section 204(d)categorically prohibited the courts from considering any defenseaddressed to the validity of the regulation in an enforcementproceeding. (259) This was necessary, he argued, "to safeguard thenation against the perils which inhere in delay, premature interruption,or nonuniform application of inflation controls in wartime." (260)His merits brief began with a long discussion of why price controls were"a matter of the most urgent necessity for a nation at wartoday." (261) The serious dangers of runaway inflation created aneed for "expeditious ... regulation." (262) Appealing to theNew Deal Court's conception of the "administrativeprocess," Fahy argued that the EPCA's administrativemechanisms served the need for continuous regulation, for simplifiedenforcement and expert review, and for administrative flexibility. (263)Moreover, Al Yakus had merely "chosen" to forego theEPCA's "orderly" procedure and "invited criminalprosecutions." (264) If everyone shared Yakus's disregard forthe administrative procedure that Congress had enacted, Fahy urged,"the price control program would collapse." (265)

Fahy then defended Section 204(d) as constitutional. He argued thatthe provision plainly served the need of

 ensuring well-advised judicial consideration, uniformity of judgment, and due reliance on a proper administrative record, in determining the complex questions presented by a challenge to a price regulation; and by ensuring that persons who disregard the statutory opportunities for review will not be permitted to convert prosecutions for violation of price ceilings into controversies resembling peacetime rate litigation. (266)

Echoing Professor Nathanson, (267) Fahy argued that the validity ofSection 204(d) was "fortified by established principles ofadministrative law." (268) The defendants' inability tochallenge the regulation, he argued, was "a normal consequence oftheir failure to exhaust their administrative remedies." (269) Thepresent challenge was simply a "collateral attack" that had tobe rejected under Bethlehem Steel. (270) Moreover, lower courts hadpreviously upheld similar administrative arrangements against dueprocess challenges. (271)

Next, Fahy argued that the Act's provision denying the courtsthe power to stay enforcement proceedings or to issue interlocutoryinjunctions was also constitutional. (272) Fahy questioned Yakus'sstanding to attack the stay provisions and urged that congressionallimitations on the court's equity power in the public interest wereunexceptional, citing precedents. (273) Moreover, Fahy argued--nowfollowing Freund (274)-that Ex Parte Young and its progeny were not onpoint. Unlike the railroads in Ex Parte Young, the meat dealers in thiscase had an opportunity to challenge the regulation in a non-criminalforum, and unlike public utilities, they were not subject to acontinuous confiscation of their property. (275)

Fahy's brief devoted few pages to the delegation issue. InFahy's view, the regulatory standards set in the Act were adequate.Moreover, OPA's unpublished report on the general economicconditions of the meat industry satisfied any requirement of findings offact necessary to support a delegation. (276)

2. The Court Decides

Barely a week before oral argument in Yakus, the Supreme Courtreleased an opinion that further undermined the meat dealers'position. In Falbo v. United States, (277) the Court upheld theconviction of a Jehovah's Witness for resisting an order to reportfor duty under the Selective Training and Service Act of 1940. (278)Like other Witnesses, Falbo resisted the order in district court on thebasis that the local board had erroneously and arbitrarily classifiedhim as a conscientious objector, instead of a religious minister. TheSupreme Court held that Congress had foreclosed Falbo's defense(while leaving open the possibility of habeas corpus review). (279)Alongside Hirabayashi v. United States, (280) Falbo was the onlyprecedent supporting the Government's position that Congress couldforeclose a defense of invalidity in a suit to enforce an administrativeorder. With that, the stage was set for Yakus v. United States.

We have been unable to locate a transcript or account of the oralargument. (281) By all appearances, it cannot have gone well for thepetitioners. On March 27, 1944, the Supreme Court sustained the validityof Albert Yakus's conviction by a vote of six to three. ChiefJustice Stone wrote for the Court. Justices Roberts, Murphy, andRutledge dissented.

3. The Majority Opinion

The majority opinion, expertly crafted by Chief Justice Stone, madethe EPCA seem entirely unexceptional. Brushing aside thepetitioners' (and the dissenters') explanation that theadministrative process was a charade, the majority opinion assumed aposture of extreme deference: "[W]e cannot assume," "wecannot pass upon," and "we cannot say," the Courtreiterated throughout, that OPA would have declined to afford relief--ifonly the petitioners had filed a protest. (282) However, theCourt's attempt to make Yakus look like a routine case over theexhaustion of administrative remedies barely disguises the bolder,bare-knuckles aspects of the majority opinion.

The first noteworthy feature is the Court's treatment of thewartime nature of the EPCA. Draconian statutes enacted during wartime,and judicial decisions that uphold or enforce them, pose a danger thatone-off responses to a dire emergency might become the new normal. Yakuspresented that problem in sharp relief. Moreover, the Government, whileemphasizing the overriding need for an administrative apparatus adequateto the challenges of war, subtly worked to suggest that war was simply aparticularly stark example of the sort of real-world challenges thatadministrators must be prepared to meet and conquer at all times. Itsbrief did advert to the urgency of the occasion. But then, it isdifficult to imagine a situation in which government might not see aneed for continuous regulation, simplified enforcement and review, andadministrative flexibility--the rationales which the Government invokedin defense of the EPCA (283) and which the majority opinion embraced.Justice Roberts's dissent articulated the fear that theCourt's reasoning in support of the EPCA might come to stand as lawfor all times. (284) Not one word in the majority's opiniondisavows that proposition. Chief Justice Stone's opinion refers tothe exigencies of war several times--in each instance, as a warrant forthe statute, but never as a limit on the precedential scope of theCourt's ruling. (285)

A second striking feature of the majority opinion is its rhetoricalevasion of the precise question presented by the case. At the end of theday, Albert Yakus had one central claim: before a citizen may be sent tojail for violating a generally applicable rule of private conductoriginating in an administrative agency, that person must have someeffective means of testing, in an independent court, the validity ofthat rule vis-a-vis the congressionally enacted statute said toauthorize it. The claim can be viewed from multiple perspectives. It canbe said that a violation of this proposition unconstitutionally empowersagencies (a non-delegation framing); or that it unconstitutionallyeviscerates judicial review (an Article III or separation-of-powersframing); or that it unconstitutionally subjects citizens to arbitrary,tyrannical government (a due-process framing). But however one framesthe problem, the basic rule of law problem of pure executive regulationremains.

Against this backdrop, the most jarring feature of the majorityopinion, bearing directly on the contention of this Article, is themajority's acceptance of the EPCA's and the Government'sdisaggregation strategy. Where the dissenters--in differentways--insisted on viewing the EPCA, its procedures, and theconstitutional structure in context and as a whole, Chief Justice Stoneneatly divided the opinion into four isolated questions thatdisconnected the inquiry from any systematic constitutional perspective:(1) delegation; (2) the interpretation of 204(d); (3) due process; and(4) the Sixth Amendment and the judicial power of the United States.

The Chief Justice began by noting that the Act appropriatelychanneled the Administrator's discretion toward the goal ofavoiding inflation and its consequences. (286) The means of"maximum price fixing" were constrained, (287) and theAct's standards were "sufficiently definite andprecise"--when considered together with "the 'statementof the considerations' required to be made by theAdministrator"--to satisfy the non-delegation doctrine. (288) Theopinion also distinguished Schechter on the ground that Schechterinvolved a delegation "to private individuals engaged in theindustries to be regulated." (289) That is untenable. (290) Thetrue distinction, noted in Justice Roberts's dis sent, (291) wasthat the majority had denuded the non-delegation doctrine of its contextand reduced it to a toothless "intelligible principle" test.(292)

Chief Justice Stone dealt swiftly with the question of whetherSection 204(d) prohibited the courts from questioning the validity of aregulation in an enforcement proceeding. (293) The text of 204(d) shouldbe interpreted literally, "at least" before a regulation washeld invalid by the Emergency Court. (294) The qualifying phrase allowedthat there might be an affirmative defense for a person convicted undera rule that had been found unlawful by the Emergency Court--assuming,against all odds, that such a ruling might materialize someday.

Chief Justice Stone then proceeded to consider whether the EPCAviolated due process. When the EPCA was enacted, he noted, "it wascommon knowledge" that "there was a grave danger of wartimeinflation and the disorganization of our economy from excessiveprices." (295) Given the "emergency" conditions, it was a"sufficient answer" to the meat dealers' contentions thatnothing on the face of the statute required the courts to uphold"their conviction for violation of a regulation before they couldsecure a ruling on its validity." (296) Because the meat dealershad failed to exhaust their administrative remedies, Chief Justice Stonecontinued, "we cannot assume" that they would have beenconvicted without legal redress if they had filed a protest. (297)"Only if we could say in advance of resort to the statutoryprocedure that it is incapable of affording due process topetitioners," the majority explained, "could we conclude thatthey have shown any legal excuse for their failure to resort to it orthat their constitutional rights have been or will be infringed."(298) In this case, it was at least conceivable that the Emergency Courtcould enter a final judgment on the legality of Rule 169 before theGovernment secured a conviction.

In stipulating this chain of events, the opinion ignored reality.(299) The majority's position is that due process in a criminalprosecution is satisfied by any administrative procedure that mightprovide relief under some conceivable set of circ*mstances, even whenthe effectiveness of that procedure is concededly left to theagency's well-nigh unreviewable discretion. Proceeding from thatpremise, the majority hacked through the EPCA's due processproblems one by one, showing how, "on their face" andinterpreted with reference to the present "emergency," theydid not violate "traditional" due process. (300) Moreover,said the Court, the Act's splintering of enforcement proceedingsfrom regulatory challenges "presents no novel constitutionalissue." (301) The Court recognized

 no principle of law or provision of the Constitution ... which precludes the practice, in many ways desirable, of splitting the trial for violations of an administrative regulation by committing the determination of the issue of its validity to the agency which created it, and the issue of violation to a court which is given jurisdiction to punish violations. (302)

To support its proposition that this feature presented no"novel" question, the Court relied on administrative schemeslike the Hepburn Act, the Packers and Stockyards Act, and the Radio Actof 1927, which (it argued) also barred defenses to administrative orderswhen the defendant failed to avail itself of the administrative process.(303) The analogy to these peacetime administrative schemes, the Courtsaid, was "complete and obvious." (304) As Justice Rutledgeargued in dissent, however, none of those statutes presented quite thecombination of devices at issue in Yakus. In fact, the Supreme Court hadnever decided a case that squarely presented the "due process"question presented in Yakus. (305)

Chief Justice Stone distinguished Ex Parte Young by (again)declaring that the meat dealers were "not confronted with thechoice of abandoning their business or subjecting themselves to thepenalties of the Act before they have sought and secured a determinationof the Regulation's validity." (306) This was not a fairaccount of the situation: on any realistic account, the meat dealers hadno adequate legal remedy. Never mind: "we cannot assume that[OPA]" would decline to "suspend or ameliorate the operationof a regulation during the pendency of proceedings to determine itsvalidity." (307) In this fashion, the majority rejected a dueprocess challenge on the assumption that OPA could exercise a dispensingpower it had plainly declined to exercise in the case under review.(308)

4. The Dissents

Two separate dissents in Yakus present differing responses to themajority's opinion. Justice Owen Roberts, the lone holdover from aRepublican administration, mounted a last stand in defense of the oldorder. The purported standards to guide OPA's discretion, JusticeRoberts pointed out, were broad enough to allow the Administrator toadopt "any conceivable policy." (309) By upholding OPA'sroving commission to control prices, Justice Roberts wrote, the majorityhad effectively overruled Schechter. (310) Moreover, the broaddelegation of power, when combined with the Act's procedures andjudicial review provisions, was

 a solemn farce in which the Emergency Court of Appeals, and this court, on certiorari, must go through a series of motions which look like judicial review but in fact are nothing but a catalogue of reasons why, under the scheme of the Act, the courts are unable to say that the Administrator has exceeded the discretion vested in him. (311)

In his closing paragraphs, Justice Roberts bitterly protested themajority's failure to limit its holding to Congress's warpowers. (312)

Justice Rutledge's dissent, joined by Justice Murphy, was moreambivalent. In a crucial passage, Justice Rutledge stated:

 Once it is held that Congress can require the courts criminally to enforce unconstitutional laws or statutes, including regulations, or to do so without regard for their validity, the way will have been found to circumvent the supreme law and, what is more, to make the courts parties to doing so. This Congress cannot do.... [W]henever the judicial power is called into play, it is responsible directly to the fundamental law and no other authority can intervene to force or authorize the judicial body to disregard it. The problem therefore is not solely one of individual right or due process of law. It is equally one of the separation and independence of the powers of government and of the constitutional integrity of the judicial process, more especially in criminal trials. (313)

Crowell v. Benson would be a perfectly fine cite here: by itsterms, the quoted passage echoes the themes of the "supremacy ofthe law" jurisprudence. (314) Even so, Justice Rutledge wasprepared to concede that "Congress [may], by offering theindividual a single chance to challenge a law or an order, foreclose forhim all further opportunity to question it, though requiring the courtsto enforce it." (315) In civil proceedings, he argued, Congresscould compel enforcing courts to automatically enforce regulations inmost circ*mstances, as long as the regulation was not "invalid onits face." (316) In other words, the result in Yakus would havebeen constitutionally permissible, even perhaps in times of peace, ifonly OPA had refrained from sending Yakus to jail and instead soughtcivil penalties. Justice Rutledge even conceded that Congress couldrequire courts to enforce regulations without regard to their validityin criminal cases--provided that "the special proceeding is clearlyadequate, affording the usual rights to present evidence, cross-examine,and make argument, characteristic of judicial proceedings" andprovided that the opportunity for an administrative appeal is "longenough so that the failure to take it reasonably could be taken to meanthat the party intends, by not taking it, to waive the question actuallyand not by forced surrender." (317) In short, the supremacy of thelaw could be largely replaced with administrative process in civilcases, and maybe even in criminal cases too.

For all its diffidence, Justice Rutledge's dissent persuadedCongress to amend the EPCA's administrative procedures. (318) TheStabilization Extension Act of 1944, enacted on June 30, 1944, extendedprice controls for a year. (319) But the law included several newprocedural safeguards. It allowed courts to stay enforcement proceedingsuntil the regulation was reviewed by the Emergency Court, provided thatthe invalidity of a regulation would be an absolute defense, eliminatedthe 60-day time limit to file a protest, and provided a mandamus actionfor undue delay. (320) Congress also required OPA to conduct formaladjudications before promulgating a regulation, "a provision thatanticipated in effect one of the features of the AdministrativeProcedure Act of 1946." (321) This belated recognition ofrule-of-law concerns, it seems safe to say, casts doubt on theadministration's full-throated defense of the original EPCA and onthe Yakus Court's embrace of that position: was all that reallynecessary?

E. And in the End

On June 21, 1944, almost three months after Yakus was decided, OPAdenied the renewed protests filed by the meat industry. (322) TheEmergency Court did not hear any of the protests on the merits of Rule169 until October 1944, several months after the Supreme Court hadupheld the conviction in Yakus, and it did not decide the merits of theindependent packers' challenge to the regulation until 1945, whenthe war was all but over. (323) The judge in that case, CalvertMagruder, was well-familiar with the matter: as a judge on the FirstCircuit Court of Appeals, he had written the appellate opinion in Yakusv. United States. (324)

After years of delay, independent packers and slaughtererspetitioned the Supreme Court for review. Justice Roberts was provenright: given the EPCA's breadth and rudimentary procedures, themeat packers had no chance of showing in any judicial forum, let aloneon a petition for discretionary Supreme Court review, that OPA hadexceeded its delegated authority. (325) The Supreme Court deniedcertiorari. (326)

By that time, all was over but the shouting. In June 1945, Congressresponded to the industry's plight by requiring the PriceAdministrator to assure a fair profit on the processing of each speciesof livestock. (327) This overturned the "critical" industryearnings standard "which had been so long fought for" by OPA.(328) In November 1945, wartime rationing came to an end, and the senseof shared sacrifice that had sustained OPA during the war quicklydissipated before the "more focused opposition" of the meatindustry. (329) In time for the November elections, President Trumanderegulated meat. (330) But Democrats paid a political price for themeat shortages: during the "beefsteak elections" of 1946,Republicans took control of Congress for the first time in sixteenyears. (331)

IV. CONCLUDING REMARKS: THE LEGACY AND LESSONS OF YAKUS

Why should administrative lawyers and legal scholars care aboutYakus v. United States? The case has generated neither copious SupremeCourt citations nor sustained scholarly discussion. Its specificholdings regarding the exhaustion of administrative remedies and reviewpreclusion bear no comparison to contemporary, foundationaladministrative law decisions, from Seminole Rock (332) to Chenery. (333)And the procedural deficiencies that were ignored so cavalierly in Yakuswere soon addressed by Congress--first in the 1945 amendments to theEPCA and then in the APA, whose administrative procedures and judicialreview provisions afford regulated parties a fair measure of protection.One can even argue that the seemingly troublesome holding of Yakus makesperfect sense in an administrative system that has come to operateprincipally through informal rulemaking. Modern-day notice-and-commentproceedings are subject to elaborate procedural protections, andpre-enforcement review--a rough substitute for the Ex Parte Young reliefdenied in Lockerty and Yakus--is a well-nigh foregone conclusion in anysignificant rulemaking proceeding. It is hard to see how that systemcould achieve bureaucratic rationality, uniform application, andstability without precluding subsequent collateral attacks in districtcourts. (334) Viewed in that light, Yakus may be foundational in a goodsense--blissfully ahead of its time, perhaps, in anticipating thedemands of the regulatory state.

Our own view is not quite so sanguine. The EPCA, we hope to haveshown, was a full-blown embodiment of a constitutionally unconstrainedadministrative state, and Yakus was quite arguably the most fulsomejudicial endorsem*nt of that vision. Our remarks in this Part concernthat forgotten--but, we think, nonetheless foundational--aspect of thecase. Subpart A describes what one might call, with apologies toProfessor Henry Hart, Yakus's true Dialectic: (335) preciselybecause Yakus affirmatively laid to rest then-still-lingering notions ofthe supremacy of the law, the case itself receded from memory. Itremained forgotten so long as, and again because, the basicconstitutional presumptions of post-New Deal administrative law remainedlargely uncontested. Of late, however, those presumptions have becomethe subject of a vibrant and occasionally heated administrative lawdebate that resonates with supremacy-of-the-law themes last articulatedin the 1930s. (336)

Subpart B sketches our thoughts on Yakus's lessons in thecontext of that debate.

A. Yakus v. United States: Dialectics

The story of Yakus, we trust, leaves a sense of unease. In part,the discomfort stems from the gut sense that this should not havehappened to A1 Yakus. But that sentiment does not carry very far. Badthings happen to lots of good people in wartime, and while the meatdealers' fate was undoubtedly harsh, it is hardly the stuff ofKorematsu (337) or Ex Parte Quirin. (338) The true source ofdiscomfort--ours, at any rate--is that Yakus runs up very hard againstbasic constitutional precepts. Before we deprive citizens of theirrights (and send them to jail), they must have a chance to contest thevalidity of the rule under which they are being convicted in anindependent court. Professor Henry Hart--a former OPAattorney--confronted the problem in his famous Dialectic. Show me acase, he wrote, that abrogates that principle, "and I will rethinkMarbury." (339) And to Hart's mind, Yakus was an exceedinglyclose case.

There are several ways to address Yakus's Marbury problem. Thefirst, most obvious option is to park the EPCA and Yakus in a wartimeexception corner. Henry Hart flirted with that interpretation (340) butdid not rely on it, for reasons that strike us as convincing. A bigdifference exists between a wartime statute or decision--a genuineemergency measure, recognized as such--and a statute or decision thatuses war as a pretext to realize broader political ambitions. The EPCAand Yakus fit the latter description. The EPCA was a reenactment of theNational Industrial Recovery Act, and Yakus was a replay of Schechter.Wartime exigencies merely served to lend added plausibility to the NewDeal's legal positions. (341)

A second way of dealing with Yakus is to evade the constitutionaldifficulties. That move is exemplified by Adamo Wrecking Co. v. UnitedStates, (342) the only Supreme Court decision to feature any meaningfuldiscussion of the case. Adamo Wrecking concerned a Clean Air Actprovision that requires parties to bring pre-enforcement challenges tocertain emission standards within sixty days and, with a narrowexception, bars judicial review thereafter. (343) The defendant in AdamoWrecking argued that the regulation under which it had been prosecutedwas not actually an "emission standard" subject to thepreclusion provision. Chief justice Rehnquist's majority opiniondeemed the challenge permissible (and in the end meritorious). Thestatute at issue in Yakus, the Chief Justice wrote, broadly foreclosedany challenges outside the Emergency Court. (344) The Clean Air Act, bycontrast, permitted a challenge--and de novo review--on the question ofwhether the underlying regulation was in fact an emission standard (butnot on any other question). (345) Four dissenters took issue with themajority's artful statutory reconstruction. (346) But neither theynor the majority intimated that an across-the-board preclusion of reviewmight pose constitutional problems. Only Justice Powell's briefconcurrence adverted to the due process issue--and, predictably,proposed to distinguish Yakus as a wartime case. (347)

The third way of dealing with the uncomfortable teaching of Yakusis to read it as it as case about the exhaustion of remedies: there wasa process, if only the defendants had used it. That, in the end, wasHenry Hart's answer. (348) To our minds, it is not a convincinganswer. Put aside any quarrels over Hart's contention thatconstitutional minima are satisfied so long as some court in the UnitedStates remains open. Put aside, too, the fact that even the EPCA'sprocedural charade evidently measured up to Hart's standard of"adequacy": the plausibility of his view depends on ana-contextual, compartmentalized view of constitutional constraints. Fora ready example, it is one thing for Congress to withhold federal courtjurisdiction or for that matter "adequate" administrativeprocedures in matters of "public" right, for an agency that istightly controlled by legislative rules. It is a very different thing todispense with judicial controls over an agency with roving rulemakingand enforcement authority over the entire economy. (349) For an equallyready example, it is one thing to preclude effective judicial review, orfor that matter to demand the exhaustion of chimerical administrativeprocedures. It is a very different thing to then mobilize the federalcourts for enforcement purposes. (350) In short, the plausibility ofviewing Yakus as a mere exhaustion case hangs on one's willingnessto splinter and so to marginalize "supremacy-of-law" notions,the better to make way for a virtually unconstrained administrativeprocess.

To be sure: Yakus is not the only case to reflect that program andorientation. However, the case was widely recognized as emblematic bynumerous leading scholars, including the founders of the then-emergingdisciplines of Administrative Law and Federal Courts scholarship. Earlycasebooks and treatises place Yakus at the heart of the administrativelaw enterprise and discuss it prominently. (351) Writing in 1951, forexample, Professor Kenneth Culp Davis looked back on the "supremacyof law" period, when "some writers ... tried unsuccessfully toconfine administrative power through a concept called 'the rule oflaw.'" (352) Professor Davis's treatise celebrated thepassing of that "old" administrative law--"limited"as it was to judicial review, "with concentration on the separationof powers and non-delegation." In lieu of the separation of powers,administrative law could now focus "upon the administrative processitself." (353) That view is manifestly inconsistent withconstitutionally grounded doctrines of administrative law. (354) If the"administrative process itself" is to become the core of theenterprise, the constitutional doctrines must be severed andmarginalized. The EPCA's architects and defenders saw the point,and the Yakus Court embraced it. And precisely because their visiontriumphed so completely, Yakus eventually receded from the legal debateand the case law.

Professor Adrian Vermeule has recounted this dialectic in anambitious, often compelling book. (355) His examination begins wherethis Article began, many pages ago: with the jurisprudence at the dawnof the New Deal, and Crowell v. Benson in particular. Though limited toquestions of pure fact, Vermeule argues, the judicial deference embracedby the Crowell Court proved the undoing of a constitutionally groundedframework of administrative law. (356) Crowell made room foradministrative discretion for compelling reasons, including thecommission's fact-finding expertise and the economy of the overalladministrative system. (357) The question then becomes how much courtscan in the end contribute to administrative rationality and the smoothfunctioning of the system, and the answer is, not a great deal. (358)Over time, law "abnegated" and gave way to deference--first on"mixed" questions of law and fact; then on questions of lawand, eventually, even on questions of the agency's jurisdiction.Law in a formal and constitutional sense became marginal, both in thecolloquial sense of "not very important" and in the sense ofoperating as an outer boundary rather than an organizing principle.(359)

On Professor Vermeule's own account, Yakus marks a milestonein the marginalization of constitutionally grounded doctrines ofadministrative law. (360) Our microlevel analysis complements andqualifies the author's account in one respect and rounds it inanother. Whereas Professor Vermeule describes the trajectory justsketched as a self-driven, "internal" process of"abnegation," our ground-level analysis shows real-worldactors at work; and the EPCA and the Yakus case appear as an importantmoment of purposeful administrative state-building, not just aninflection point on "the arc of the law." (361) And whereasProfessor Vermeule describes the marginalization of rule-of-lawconstraints as a one-dimensional, law-versus-deference affair, we havedescribed "law" at the time of Crowell as an "elaboratestructure," buttressed by constitutionally-based, interconnected"outworks." (362) So long as the outworks remained connected,they were capable of bending without breaking. Isolate the"outworks": they lose their purpose and the prospect of mutualreinforcement. That, we have argued at length, was the genius ofYakus--the deliberate splintering of legal doctrines that, in thesupremacy-of-law imagination, belonged together: the separation ofpowers, delegation, due process, judicial review. Conjoin thoseelements: there is no very good answer to Justice Owen Roberts'sdissent in Yakus. Pull them apart: there is no very good answer to ChiefJustice Stone's majority opinion, or for that matter to HenryHart's Dialectic.

B. The Lessons, Perhaps, of Yakus

What ensured Yakus's descent into a legal memory hole, we havejust suggested, is the broad acceptance of its premises or perhapsbetter, its vision of an effectively unconstrained administrativeprocess. But that consensus has been shaken. Long acceptedadministrative law canons, including Chevron deference, have becomeintensely controversial. (363) The rise of an executive-led governmentand the corresponding decline of the powers of Congress have likewisesparked intense debate. (364) Expansive delegations of legislativepowers, coupled with highly deferential judicial review and increasingly"unorthodox" forms of lawmaking and regulation, (365) haveprompted scholars from diametrically opposed vantages to argue thatadministrative law is an unlawful break with constitutional government,(366) or a thin veneer of law for an essentially "Schmittian"state above and beyond effective legal control. (367) Even scholars whor*sist such dramatic claims have noted the improvisational nature ofadministrative law and called for a "constitutionalreassessment." (368) Those scholarly contentions, moreover, arehardly academic; they have spilled over into judicial decisions and intothe public debate. (369) What, in that context, is one to make of, orlearn from, Yakus v. United States?

For defenders of the administrative project, Yakus need not causeany great consternation. The Dialectic shows the way; and whatevermisgivings one might have about the EPCA's bare-bones procedures,they were soon supplemented and remedied, first by statutory amendmentsto the act and then by the APA. What remains to be done is whatProfessor Vermeule has done with commendable candor: face up to the caseand its implications. (370)

We are less confident about Yakus's lessons for"anti-administrativists" (371)--a camp that (for presentpurposes) we take to include not only declared foes of "theadministrative state" but also and especially more diffidentscholars who are uneasy about an enterprise that is poorly constrainedby constitutionally unmoored, pragmatically improvised doctrines. But wedo suggest that the case should prompt deeper thought about fundamentalquestions of administrative law and constitutional government.

In the scholarly literature, attacks on the administrative stateand its law have generally taken one of two forms: high-levelconstitutional argument that declares the entire enterpriseunconstitutional and unlawful ab ovo; (372) or else, attacks onparticular doctrines, from Auer to Baltimore Gas to Chevron and onthrough the alphabet. (373) Neither line of argument seems veryplausible, even on the proponents' own terms. Constitutionalformalism's most formidable proponent in the Administrative Lawprofession (Gary Lawson) has declared the enterprise effectivelyhopeless. (374) And meliorist proposals for more demanding judicialreview--to the extent that they are not simply placeholders for muchlarger discontents (375)--meet with Professor Vermeule's readyreply: judicial deference expanded for perfectly good reasons, includingthe systemic cost of legalism. (376) Thus, we suspect that a program tore-constitutionalize the administrative state cannot rest on grim-faced,uncompromising formalism or modest calls for somewhat less judicialdeference. Rather, effective reform would have to build morecomprehensively, coherently, and painstakingly on some formula thatretains the root aspirations of Crowell and Schechter, though notnecessarily their specific doctrinal teachings--a formula thatreconciles the demands of liberal constitutionalism with the inescapablerealities of modern government.

If that is roughly right, such a re-articulation will hang onreconnecting the constitutional pieces torn asunder in Yakus. That is anexceedingly tall order. It is one thing to describe the conflict ofvisions between an integrated, structural view of the constitutionalworld and the slice-and-dice world of Yakus. It is much harder toascertain precisely what--other than a generally shared sense of thelegal universe--made the outworks hang together. ("Supremacy of thelaw" is no answer, only a different way of asking the question.) Wesuggest that Yakus may shed light even on that question.

Al Yakus and merchants like him engaged in the most quotidian ofprivate transactions: the sale of a basic commodity to willingcustomers, in a near-atomistic market and with no health or safetyconcerns anywhere in sight. Under a limited, constitutional government,a prohibition against that conduct--a pristine matter of private, commonlaw right--is an extraordinary thing. It is yet more extraordinary tocriminalize the transaction without affording the accused a full andfair defense, including a challenge to the rule under which he is beingprosecuted. That, in fact, had been the common constitutionalunderstanding from the Founding to the New Deal. (377) In matters of"public right," Congress may provide such process as it seesfit. In matters of private right, the process must be due process, andthat can only be had in an independent court. That intimate connectionbetween rights and structure is still vivid in Crowell and PanamaRefining and Schechter Poultry. It gets buried in Yakus. (378) Without acommon baseline of private rights, though, the "outworks of anelaborate structure" are bound to become disconnected: there isnothing to connect them to, or to one another. What remains is anadministrative process constrained only by stray remnants ofconstitutional doctrine that have lost their sense and purpose. At thatpoint, maybe we should rethink Marbury after all. (379)

A few recent judicial opinions have sought to articulate astructural, integrated perspective. (380) However, a re-engagement withthe pre-Yakus body of administrative law cannot be accomplished byprivate litigants, who will founder on the shoals of doctrinaldisjunction and judicial deference. Nor can it be the work of SupremeCourt Justices, encumbered as they are by the vagaries of litigation.Rather, any such re-engagement would require a broad, deep, andsustained scholarly debate over the constitutional-administrative middleground. (381) And sooner rather than later in that debate, theparticipants will encounter Albert Yakus.

James R. Conde & Michael S. Greve *

* Associate, Boyden Gray & Associates, J.D., Antonin Scalia LawSchool, 2015; Professor of Law, Antonin Scalia Law School. Many thanksto Aditya Bamzai, Jessica Bulman-Pozen, Eric Claeys, Richard Fallon,Robert Gasaway, and Aaron Nielson for their helpful comments andsuggestions. Special thanks to Jeremy Rabkin for his insightful commentsat every stage of the process.

(1.) Emergency Price Control Act of 1942, Pub. L. No. 77-421, 56Stat. 23; Brief for the Petitioner at 4, Yakus v. United States, 321U.S. 414 (1944) (No. 374), 1944 WL 42275.

(2.) Along with Albert Yakus, the grand jury indicted several otherNew England meat dealers and their employees. The litigation attractedsubstantial press attention. See, e.g., Beef Company's LawyersAssail Methods of OP A, The Christian Sci. Monitor, Jan. 15, 1943, at 4;Boston Lawyers Argue OPA Price Fixing Illegal, Boston Globe, Jan. 16,1943, at 3; Brighton Packing Co. Held Guilty of Violating OPA BeefCeilings, Boston Globe, Apr. 8, 1943, at 5; Meat Dealers to Face Trialin U.S. Court, The Christian Sci. Monitor, Mar. 2, 1943, at 2; MeatInquiry Brings More Indictments, The Christian Sci. Monitor, Mar. 16,1943, at 5.

(3.) See Jacob Hyman & Nathaniel Nathanson, Judicial Review ofPrice Control: The Battle of Meat Regulations, 42 U. Ill. L. Rev. 584,603-10 (1947).

(4.) See id. at 596-600.

(5.) See Willard D. Arant, Wartime Meat Policies, 28 J. Farm Econ.903, 909 (1946).

(6.) See infra notes 210, 214 and accompanying text.

(7.) Yakus v. United States, 321 U.S. 414, 433-44 (1944).

(8.) Id.

(9.) Id.

(10.) See Convicted Meat Dealers Label Price Act asUnconstitutional, BOSTON GLOBE, June 30, 1943, at 13. Al Yakus returnedto the meat business after the war, serving as president of the YakusBeef Company. He was a "leader in Boston's Jewishcommunity," active in "numerous Jewish civic and philanthropicorganizations[,]" including Boston's Jewish Memorial Hospital.Obituary, Albert Yakus, 86: Was Head of Beef Company, Boston Globe,Sept. 21, 1986, at 55.

(11.) See, e.g., Laurence H. Tribe, 1 American Constitutional Law[section] 3-5, at 271 n.19 (3d ed. 2000).

(12.) See, e.g., David P. Currie, Federal Courts 105-06 (4th ed.2008); Richard H. Fallon, Jr. et al., Hart & Wechsler's TheFederal Courts and the Federal System 343-44 (7th ed. 2015); Martin H.Redish et al., federal courts: Cases Comments and Questions 132-138 (7thed. 2011). The usual question is Congress's power over the federalcourts' "jurisdiction."

(13.) See, e.g., Stephen G. Breyer et al., Administrative Law andRegulatory Policy 1159 (5th ed. 2002); Richard J. Pierce, Jr., 2Administrative Law Treatise [section]15.2 (5th ed. 2010).

(14.) See, e.g., Gary Lawson, Federal Administrative Law 1114-16(6th ed. 2013).

(15.) See, e.g., Kristin e. Hickman & Richard J. Pierce, Jr.,Federal Administrative Law: Cases and Materials 35 (2010) (citing Yakusin passing as a non-delegation case); Alfred C. Aman, Jr.,administrative law in process (2d ed. 2006) (using the companion case todiscuss "hearing rights").

(16.) See infra notes 342-47 and accompanying text.

(17.) Infra Part II.A.

(18.) For detailed discussion see infra Part III.D.1.

(19.) See Whitman v. Am. Trucking Ass'ns., 531 U.S. 457, 472(2001).

(20.) See, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 302-03(1979).

(21.) See Bowen v. Mich. Acad, of Family Physicians, 476 U.S. 667,670 (1986); Abbott Labs. v. Gardner, 387 U.S. 136,140 (1967).

(22.) See Auer v. Robbins, 519 U.S. 452, 462 (1997); ChevronU.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-44(1984).

(23.) John Dickinson, Administrative Justice and the Supremacy ofthe Law in the united States 75 (1927) (discussed infra notes 37-50 andaccompanying text).

(24.) Adrian Vermeule, Law's Abnegation 6-7 (2016).

(25.) See id. at 44-45.

(26.) See, e.g., Philip Hamburger, Is administrative law unlawful?(2014); Gary Lawson, The Rise and Rise of the Administrative State, 107Harv. L. Rev. 1231 (1994).

(27.) See Dep't Of Transp. v. Ass'n of Am. Railroads, 135S. Ct. 1225, 1241 (2015) (Thomas, J., concurring in the judgment).

(28.) See Murray's Lessee v. Hoboken Land & ImprovementCo., 59 U.S. (18 How.) 272, 284 (1856) ("[W]e do not considercongress can either withdraw from judicial cognizance any matter which,from its nature, is the subject of a suit at the common law, or inequity, or admiralty; nor, on the other hand, can it bring under thejudicial power a matter which, from its nature, is not a subject forjudicial determination ...."); see also Caleb Nelson, Adjudicationin the Political Branches, 107 Colum. L. Rev. 559, 568-70 (2007)(explaining the doctrine of private rights).

(29.) See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); ThomasW. Merrill, Marbury v. Madison as the First Great Administrative LawDecision, 37 J. Marshall L. Rev. 481, 483 (2004) (describing Marbury as"a benchmark against which subsequent debate about the properstandard of review has unfolded").

(30.) See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316,410-25 (1819).

(31.) See, e.g., Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42-43(1825).

(32.) See, e.g., Murray's Lessee, 59 U.S. (18 How.) at 284;see also Nelson, supra note 28, at 587-90 (discussing the case); AnnWoolhandler, Public Rights, Private Rights, and Statutory Retroactivity,94 GEO. L.J. 1015, 1020-22 (2006) (discussing the notion of private andpublic rights).

(33.) See, e.g., Munn v. Illinois, 94 U.S. 113, 125-26 (1876); seealso Barry Cushman, Rethinking the New Deal Court: The Structure of aConstitutional Revolution 48-51 (1998) (discussing Munn and itsprogeny).

(34.) Ex Parte Young, 209 U.S. 123, 148 (1908).

(35.) See Crowell v. Benson, 285 U.S. 22, 56-57 (1932).

(36.) A.L.A. Schechter Poultry Corp. v. United States, 295 U.S.495, 533 (1935) (noting, in striking down the statute, that "[i]nproviding for codes, the National Industrial Recovery Act dispenses with... any administrative procedure of an analogous character" to thatof the FTC).

(37.) Dickinson, supra note 23, at 75.

(38.) Id. at 32-33.

(39.) Id. at 35; see also Daniel R. Ernst, Tocqueville'sNightmare: The Administrative State Emerges in America, 1900-1940, at32-33 (2014).

(40.) Id.; see also Dickinson, supra note 23, at 33("[N]othing has been held more fundamental to the supremacy of lawthan the right of every citizen to bring the action of governmentofficials to trial in the ordinary courts of the common law.").

(41.) See Thomas W. Merrill, Article III, Agency Adjudication, andthe Origins of the Appellate Review Model of Administrative Law, 111Colum. L. Rev. 939, 953-64 (2011).

(42.) e.g., the Hepburn Act, ch. 3591, [section] 4, 34 Stat. 584,589 (1906), vested the Interstate Commerce Commission (ICC) with thepower to set binding "just and reasonable" rates for carriersthrough self-executing administrative orders. Carriers could challengetheses orders by petitioning a circuit court to "enjoin, set aside,annul, or suspend" the order. Id. [section] 5, at 592.Simultaneously, the ICC or injured third parties could ask a circuitcourt to enforce an ICC order. In such cases, courts were required toenforce an order if "upon such hearing as the court may determineto be necessary, it appears that the order was regularly made and dulyserved," and "that the carrier is in disobedience of thesame." Id. [section] 5, at 591.

(43.) Merrill, supra note 41, at 939, 945, 953, 973-76, 979. For ashort but impressive account of Professor Dickinson's life and manyaccomplishments, see George L. Haskins, John Dickinson 1894-1952, 101 U.Pa. L. Rev. 1 (1952).

(44.) Merrill, supra note 41, at 974, 976.

(45.) Id. at 940-42.

(46.) Id. at 987-94 (discussing how the "fear of judicialcontamination" drove the appellate review model); see also, e.g.,Federal Radio Comm'n v. Gen. Elec. Co., 281 U.S. 464, 470 (1930)("Our conclusion is that the proceeding in that court was not acase or controversy in the sense of the judiciary article, but was anadministrative proceeding, and therefore that the decision therein isnot reviewable by this Court.").

(47.) ERNST, supra note 39, at 32.

(48.) As Chief Justice Hughes remarked before the American BarAssociation in 1931, "[a]n unscrupulous administrator might betempted to say, '[l]et me find the facts for the people of mycountry and I care little who lays down the generalprinciples.'" Laird Bell, Let Me Find the Facts ..., 26 A.B.A.J. 552, 552 (1940).

(49.) See Dickinson, supra note 23, at 55 ("In truth, thedistinction between 'questions of law' and 'questions offact' really gives little help in determining how far the courtswill review; and for the good reason that there is no fixeddistinction."); id. at 309-13 (discussing the difficulty ofdetermining "jurisdictional facts.").

(50.) Id. at 11.

(51.) See, e.g., Chi., Milwaukee & St. Paul Ry. v. Minnesota,134 U.S. 418, 456-57 (1890).

(52.) Ex Parte Young, 209 U.S. 123, 148 (1908); see also Wadley S.Ry. v. Georgia, 235 U.S. 651, 662-67 (1915) (explaining the due processdoctrine of Ex Parte Young).

(53.) See Crowell v. Benson, 285 U.S. 22, 63-65 (1932); see also NgFung Ho v. White, 259 U.S. 276, 284 (1922); Ohio Valley Water Co. v. BenAvon Borough, 253 U.S. 287, 289 (1920).

(54.) Glen O. Robinson & Ernest Gellhorn, The AdministrativeProcess 35 (1974). By 1951, Professor Davis declared that the doctrinewas "of little interest except as history." Kenneth C. Davis,Davis on Administrative Law [section] 244 (1951). The doctrine remainsalive only in the First Amendment context. pierce, supra note 13,[section] 17.9 ("The requirement of independent judicialdetermination of constitutional facts continues to exist only in theunique context of determinations that a particular expression is, or isnot, protected by the First Amendment.").

(55.) Crowell, 285 U.S. at 51-54.

(56.) 134 U.S. at 456-57.

(57.) The Minnesota Supreme Court had held that rates fixed by thecommission were not subject to judicial review. State ex rel. R.R. &Warehouse Comm'n v. Chi., Milwaukee & St. Paul Ry. Co., 37 N.W.782, 784 (Minn. 1888), Rev'd, 134 U.S. 418 (1890).

(58.) Chi., Milwaukee & St. Paul Ry., 134 U.S. at 456-57.

(59.) 209 U.S. 123 (1908).

(60.) Id. at 147-49.

(61.) See id. at 163-65.

(62.) 169 U.S. 466, 546-19 (1898).

(63.) See Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287,289 (1920) ("[I]f the owner claims confiscation of his propertywill result, the State must provide a fair opportunity for submittingthat issue to a judicial tribunal for determination upon its ownindependent judgment as to both law and facts; otherwise the order isvoid because in conflict with the due process clause.").

(64.) See Dickinson, supra note 23, at 200 (arguing that the BenAvon case was contrary to "the substantially unanimousagreement" of a growing body of public utility caselaw).

(65.) See Mark Tushnet, The Story of Crowell; Grounding theAdministrative State, in Federal Courts Stories 359 (Vicki C. Jackson& Judith Resnik eds., 2010).

(66.) Crowell v. Benson, 285 U.S. 22, 62-63 (1932). The facts triedin Crowell were necessary for the agency--and for that matterCongress--to assert constitutional power over the employer. See Tushnet,supra note 65, at 359.

(67.) Crowell, 285 U.S. at 65.

(68.) See id. at 62-64.

(69.) 298 U.S. 38 (1936). Intriguingly, the case was argued by noneother than John Dickinson, then Assistant Attorney General. Id. at 41.

(70.) Id. at 52; see also Carter v. Carter Coal Co., 298 U.S. 238,319 (1936) ("The exercise of the power of regulation is subject tothe constitutional restriction of the due process clause, and if infixing rates, prices or conditions of competition, that requirement istransgressed, the judicial power may be invoked to the end that theconstitutional limitation may be maintained.").

(71.) St Joseph Stock Yards Co., 298 U.S. at 52-53.

(72.) Id. at 84 (Brandeis, J., concurring).

(73.) Id.

(74.) See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472-77(2001); Kevin M. Stack, The Constitutional Foundations of Chenery, 116Yale L.J. 952, 989 n.158 (2007) (citing modern Supreme Court cases thatignore the "due process" aspects of the New Deal Era'snon-delegation doctrine).

(75.) See United States v. Grimaud, 220 U.S. 506, 517-18 (1911).

(76.) A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495(1935); Panama Ref. Co. v. Ryan (Hot Oil), 293 U.S. 388, 430 (1935). Fora similar reading of the cases, see Stack, supra note 74, at 986-989.

(77.) Hot Oil, 293 U.S. at 430 ("Congress has declared nopolicy, has established no standard, has laid down no rule. There is norequirement, no definition of circ*mstances and conditions in which thetransportation is to be allowed or prohibited.").

(78.) Id. at 432 (quoting Wichita R.R. & Light Co. v. Pub.Utils. Comm'n, 260 U.S. 48, 59 (1922)).

(79.) Id. ("If the citizen is to be punished for the crime ofviolating a legislative order of an executive officer ... due process oflaw requires that ... if [its] authority depends on determinations offact, those determinations must be shown.").

(80.) See Schechter, 295 U.S. at 533-34 (contrasting theadministrative procedure governing the FTC with the lack of procedure inthe NIRA).

(81.) Id. To our minds the distinction is best understood in lightof interrelated considerations of administrative regularity and judicialreviewability. The piecemeal development of common-law-like prohibitionsimposes a certain discipline on administrators, and courts areinstitutionally equipped to review the product under legal standards, denovo. FTC v. Gratz, 253 U.S. 421, 427 (1920) ("The words'unfair method of competition' are not defined by the statuteand their exact meaning is in dispute. It is for the courts, not thecommission, ultimately to determine as matter of law what theyinclude."). In contrast, prescriptive codes of fair competitionwill tend to reflect unguided interest group compromises, which courtscannot assess by any genuinely legal means at their disposal.

(82.) Ernst, supra note 39, at 67-69. The NLRA requiredadjudications to proceed through notice followed by a hearing on therecord. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 47 (1937).The NLRB was required to seek judicial enforcement of its orders beforethey were effective, and "all questions of constitutional right orstatutory authority" were subject to judicial review. Id.

(83.) NLRB, 301 U.S. at 46-48.

(84.) James M. Landis, The Administrative Process 123-155 (1938).

(85.) Id. at 127-131, 135.

(86.) Id. at 124,142,144.

(87.) Helvering v. Wilshire Oil Co., 308 U.S. 90,101 (1939).

(88.) United States v. Morgan (Morgan III), 307 U.S. 183, 190-191(1939).

(89.) United States v. Morgan [Morgan IV), 313 U.S. 409, 422(1941); see also United States v. Ruzicka, 329 U.S. 287, 295 (1946)("In construing the enforcement provisions of legislation like theMarketing Act, it is important to remember that courts andadministrative agencies are collaborative 'instrumentalities ofjustice,' and not business rivals.").

(90.) This is Professor Vermeule's decided view. See VERMEULE,supra note 24, at 24-29, 213-15 (discussing the instability of"half-measures" like Crowell). For discussion see infra PartIV.A.

(91.) See, e.g., Wickard v. Filburn, 317 U.S. Ill (1942); NLRB v.Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937).

(92.) See, e.g., Opp Cotton Mills, Inc. v. Adm'r of the Wage& Hour Div. of the Dep't of Labor, 312 U.S. 126 (1941); H.P.Hood & Sons, Inc. v. United States, 307 U.S. 588 (1939); UnitedStates v. Rock Royal Coop., 307 U.S. 533 (1939).

(93.) See Harvey C. Mansfield et al., A Short History of OPA 16-19(1946).

(94.) Id. at 19. David Ginsburg worked at the SEC during the 1930safter being recommended by Felix Frankfurter. Later, he clerked forJustice Douglas. After he resigned from OPA in 1943, he enlisted in themilitary. He dedicated much of his later life to racial integration.Ginsburg died in 2010 at the age of 98. See William Grimes, DavidGinsburg, Lawyer, Dies at 98; Led 1960s Panel on Race Relations, N.Y.times, May 26, 2010, at A25; see also John Q. Barret, David Ginsburg(1912-2010), Lifelong New Dealer, Jackson list (2010),http://thejacksonlist.com/wp-content/uploads/2014/02/20100714-Jackson-List-David-Ginsburg.pdf[https://perma.cc/4UB5-4FM2].

(95.) See Mansfield et al., supra note 93, at 20.

(96.) David Ginsburg, The Emergency Price Control Act of 1942:Basic Authority and Sanctions, 9 L. & contemp. probs. 22, 23 (1942).

(97.) Id. at 25 n.14.

(98.) Act of May 31, 1941, Pub. L. No. 77-89, 55 Stat. 236("Whenever the President is satisfied that the fulfillment ofrequirements for the defense of the United States will result in ashortage in the supply of any material for defense or for privateaccount or for export, the President may allocate such material in suchmanner and to such extent as he shall deem necessary or appropriate inthe public interest and to promote the national defense."); seealso Ginsburg, supra note 96, at 24 n.7.

(99.) First War Powers of Act of 1941, Pub. L. No. 76-354, 55 Stat.838 (1941); Second War Powers Act of 1942, Pub. L. No. 77-507, 56 Stat176, 178 (1942) (authorizing the President to "allocate" anymaterial or facility as necessary "in the public interest and topromote the national defense").

(100.) See Exec. Order No. 8734, 3 C.F.R. 921 (1938-1943).

(101.) H.R. Rep. No. 78-862, at 4 (1943). The committee based thisconclusion on Ginsburg's personal files. Id.; see also John H.Crider, The bureaucrat 144 (1944) (asserting that the Ginsburg filesshowed "the excess zeal which characterized the wholeHenderson-Ginsburg operation").

(102.) Mansfield et al., supra note 93, 20-21. The Senate"began its consideration of the bill on December 9, 1941, the dayafter Congress declared the existence of a state of war." Shapirov. United States, 335 U.S. 1, 10-11 (1948).

(103.) Cf. Joseph W. Aidlin, The Constitutionality of the 1942Price Control Act, 30 Calif. L. Rev. 648, 649-50 (1942) ("Upon acareful reading of the Act one is impressed with the skill andthoroughness evident in its preparation.").

(104). See Meg Jacobs, "How About Some Meat?": The Officeof Price Administration, Consumption Politics, and State Building fromthe Bottom Up, 1941-1946, 84 J. Am. Hist. 910, 915 (1997) (" [OPApolicy makers] saw the world through the prism of consumption....Indeed, the Office of Price Administration served as a magnet for thesemass-consumption activists").

(105.) Andrew h. Bartels, The Office of Price Administration andthe Legacy of the New Deal, 1939-1946, 5 Pub. historian 5, 10-11 (1983).Senator Albert Gore introduced a bill instructing OPA to "stabilizewages," but the bill was defeated in the House. See mansfield etal., supra note 93, at 29; see also J.M. Clark, Wartime Price Controland the Problem of Inflation, 9 law & contemp. probs. 6, 17 (1942).In the final statute, Congress merely encouraged federal agencies"to work toward a stabilization of prices, fair and equitablewages, and cost of production" while specifically prohibiting OPAfrom regulating wages. Emergency Price Control Act of 1942, Pub l. No.77-421 [section] 1(a), 56 Stat. 23, 23-24. The Administration eventuallycreated the National War Labor Board to mediate union demands. Seemansfield et al., supra note 93, at 29; see also E. Riggs McConnell, TheOrganization and Procedure of the National War Labor Board, 9 law &contemp. probs. 567 (1942).

(106.) Clark, supra note 105, at 14. The New Deal farm programssought to return farm producers to the purchasing power"parity" levels prevailing before World War I through a vastsystem of price supports and regulatory cartels. See, e.g., Parker v.Brown, 317 U.S. 341, 355 n.3 (1943); United States v. Butler, 297 U.S.1, 7, 25, 58-59 (1936); see also Harold F. Breimyer, AgriculturalPhilosophies and Policies in the New Deal, 68 MINN. L. Rev. 333, 336(1983) (explaining the New Deal's "parity" ideology).

(107.) Emergency Price Control Act of 1942, [section] 3(a), 56Stat, at 27.

(108.) See Armour & Co. v. Bowles, 148 F.2d 529, 532 (Emer. Ct.App. 1945) (explaining that the theory behind ceilings on retail andwholesale meat prices failed when livestock prices rose; "thecattle prices on which the regulation appears to have been predicatedwere soon left behind in the rising market").

(109.) Justice Rutledge's dissent in Yakus emphasized thisfeature of the statute. See Yakus v. United States, 321 U.S. 414, 474(Rutledge J., dissenting) ("[N]o one of these [earlier]arrangements goes as far as the combination presented by thisAct.").

(110.) See Nathaniel L. Nathanson, The Emergency Price Control Actof 1942: Administrative Procedure and Judicial Review, 9 LAW &contemp. probs. 60, 61 n.9 (1942).

(111.) Id.

(112.) Emergency Price Control Act of 1942 [section][section] 2, 4,56 Stat, at 24-28.

(113.) Id. [section][section] 203, 204, at 31-33.

(114.) Id. [section] 204, at 31-33.

(115.) Id. [section] 205, at 33-35; Hyman & Nathanson, supranote 3, at 584.

(116.) Mansfield et al., supra note 93, at 276 (A seller"confronted with a regulation which the Administrator had no rightto impose might have had to choose between conviction for a crime ...and compliance, possibly to his financial ruin, for the months or yearsbefore the regulation was adjudged to be invalid. Yet no court anywherecould give him relief for this dilemma.").

(117.) Emergency Price Control Act of 1942 [section] 1(a), 56 Stat,at 23-24.

(118.) Id. [section] 2(a), at 24-25. Section 2 further vested OPAwith the power to prohibit certain practices and to make exceptions as"necessary or proper" to carry out the purposes of the Act.Id. [section] 2(c)-(d), at 26.

(119.) W.[section] 4(a), at 28.

(120.) Id. [section] 201, at 29.

(121.) Id. [section] 205(e), at 34. The EPCA's expansiveenforcement provisions reflect its architects' determination toenlist the courts in the regulatory enterprise. See, e.g., Hecht Co. v.Bowles, 321 U.S. 321, 331 (1944) ("The Administrator does not carrythe sole burden of the war against inflation. The courts also have beenentrusted with a share of that responsibility. And their discretion ...should reflect an acute awareness of the Congressional admonition that'of all the consequences of war, except human slaughter, inflationis the most destructive' and that delay or indifference may befatal." (citation omitted)).

(122.) Emergency Price Control Act of 1942 [section] 205(f), 56Stat, at 34-35.

(123.) Id. [section] 205(b), at 33. OPA gained a reputation ofoften filing criminal charges for publicity purposes. See ErnestGellhorn, Adverse Publicity by Administrative Agencies, 86 harv. L. Rev.1380, 1403-04 (1973) ("Perhaps the most serious criticism leveledagainst OPA was that it sometimes filed charges merely to call publicattention to its program and to coerce compliance rather than to try theallegations in court. In response, one newspaper even refused to reportOPA charges until proceedings reached the trial stage.").

(124.) Yakus v. United States, 321 U.S. 414,474 (1944) (Rutledge,J. dissenting).

(125.) Emergency Price Control Act of 1942 [section] 2(a).

(126.) Yakus, 321 U.S. at 454 (Roberts, J., dissenting) (OPA"need make no findings of fact.").

(127.) Emergency Price Control Act of 1942 [section] 203(a), at 31.

(128.) Id.

(129.) Id. [section] 203(a)-(b), at 31.

(130.) Yakus, 321 U.S. at 475 (Rutledge, J. dissenting). Partiescould argue before the Emergency Court that evidence rebuttingOPA's grounds for decision "could not reasonably have beenoffered" at the time of the protest, but the only remedy was aremand to OPA. Emergency Price Control Act of 1942 [section] 204(a), 56Stat, at 31-32.

(131.) See Emergency Price Control Act of 1942 [section] 203(a), 56Stat, at 31 ("Within a reasonable time after the filing of anyprotest ... the Administrator shall either grant or deny such protest inwhole or in part, notice such protest for hearing, or provide anopportunity to present further evidence in connection therewith.").

(132.) H.R. Rep. No. 78-862, at 7 (1943) (finding that "theAct has been studiously and adroitly used by the Office of PriceAdministration in a great many instances as a means of indefinitelydelaying the right to judicial review").

(133.) OPA had brought 2,219 enforcement actions by the end of 1943(not accounting for private cases or administrative sanctions). Only 19protests were decided by the Emergency Court in 1943, compared to 91 in1944 and between 80 and 120 during the years following the war. SeeMansfield et al., supra note 93, at 271, 276.

(134.) The Emergency Court set aside the Administrator'sdecisions in only 30 cases (out of 397) as of February 28, 1947, and"[m]ost of the adverse decisions dealt with peripheral problems.OPA's construction of the statute and development of standardsunder it were approved by the court on all essential points."mansfield et al., supra note 93, at 279. This centralization mechanismto avoid "hostile courts" "has been credited to JudgeHarold Leventhal." James R. Elkins, The Temporary Emergency Courtof Appeals: A Study in the Abdication of Judicial Responsibility, 1978duke L.J. 113,118 n.17.

(135.) See Cudahy Bros. Co. v. Bowles, 142 F.2d 468, 470 (Emer. Ct.App. 1944); see also Montgomery Ward & Co. v. Bowles, 138 F.2d 669,671 (Emer. Ct. App. 1943).

(136.) See Ralph F. Fuchs, Prerequisites to Judicial Review ofAdministrative Action, 51 IND. L.J. 817, 876-77 (1976).

(137.) Emergency Price Control Act of 1942, Pub L. No. 77-421,[section][section] 204(d), 205(c), 56 Stat. 23, 32-33.

(138.) Dickinson, supra note 23, at 11.

(139.) Id.

(140.) Hyman & Nathanson, supra note 3, at 591; see also Yakusv. United States, 321 U.S. 414, 467 (1944) (Rutledge J., dissenting)(noting that "[t]he prohibition is unqualified").

(141.) See Rottenberg v. United States, 137 F.2d 850, 858 (1st Cir.1943).

(142.) See generally peter H. irons, the new deal lawyers (1982).

(143.) The administration's review of the available precedentsis reflected in a memorandum prepared for Congress. See Hearings Beforethe Comm. on Banking and Currency on H.R. 5479, 77th Cong. 302-39(1941).

(144.) Ginsburg, supra note 96, at 26-33.

(145.) See generally Nathanson, supra note 110.

(146.) See generally Paul A. Freund, The Emergency Price ControlAct of 1942: Constitutional Issues, 9 law & contemp. Probs. 77(1942).

(147.) 239 U.S. 441, 445 (1915).

(148.) See id. at 445.

(149.) 303 U.S. 41 (1938).

(150.) Id. at 44-46.

(151.) Id. at 47.

(152.) Id. at 50-51. Only months after the Supreme Court'sruling, a Michigan state court enjoined NLRB officials from holding ahearing. That probably motivated the EPCA's ban on the exercise ofstate judicial power. For discussion, see generally Amos J. Coffman,Comment, Power of a State Court to Enjoin National Labor Relations BoardOfficials, 36 Mich. L. Rev. 1344 (1938).

(153.) Nathanson, supra note 110, at 70.

(154.) Emergency Price Control Act of 1942, Pub L. No. 77-421,[section] 4(d), 56 Stat. 23, 28.

(155.) See Freund, supra note 146, at 83-84.

(156.) Id.

(157.) See St. Joseph Stock Yards Co. v. United States, 298 U.S.38, 49-50 (1936).

(158.) Carter v. Carter Coal Co., 298 U.S. 238, 319 (1936) (Hughes,C.J., concurring in part and dissenting in part) ("The exercise ofthe power of regulation is subject to the constitutional restriction ofthe due process clause, and if in fixing rates, prices or conditions ofcompetition, that requirement is transgressed, the judicial power may beinvoked to the end that the constitutional limitation may bemaintained.").

(159.) Nothing in Ex Parte Young indicates that it turned on thecivil or criminal nature of the hypothetical forum. See Ex Parte Young,209 U.S. 123, 165 (1908). Moreover, the statute in Ex Parte Young atleast allowed railroad officers to raise legal defenses in a criminaltrial. Id. at 164-65. The EPCA did not even pretend to extend thatfavor.

(160.) Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 49-50;see also Yakus v. United States, 321 U.S. 414, 474 n.26 (1944)(Rutledge, J., dissenting) (distinguishing the NLRA from the EPCA onthese grounds) ("[N]o penalty attaches until the [NLRB] has soughtand obtained an order from the court for enforcement. With this done,there is no danger the individual will be sentenced for crime forfailure to comply with an invalid order. And there is none that thecourt will be called upon to lend its hand in enforcing anunconstitutional edict or, for that matter, one merely in excess ofstatutory authority.").

(161.) See Yakus, 321 U.S. at 475 & n.32 (Rutledge, J.,dissenting).

(162.) Cf. Raoul Berger, Exhaustion of Administrative Remedies, 48Yale L.J. 981, 985-986 (1939) ("From the beginning, the exhaustionrule was formulated in terms of equity jurisdiction, that is to say, alitigant who failed to avail himself of administrative avenues ofredress could not 'maintain a suit in equity.'").

(163.) See Yakus, at 476-77 & n.33 (Rutledge, J., dissenting).

(164.) See Hyman & Nathanson, supra note 3, at 591-92.

(165.) Id. at 584.

(166.) Id. at 590 n.18.

(167.) Id.

(168.) See Amity Shlaes, The Forgotten Man: A New History of theGreat Depression 239-11 (2007) (narrating the oral argument).

(169.) See MANSFIELD ET AL., supra note 93, at 7; see also Crider,supra note 101, at 140 ("[OPA] could be criticized on numerousother grounds, but never for lack of sincerity, or energy, or courage.Indeed, the most conspicuous fault of the team was excess ofzeal.").

(170.) Between 1941 and 1946, OPA's "paid and volunteerstaff numbered over a quarter of a million and included twice as manyeconomists as the Treasury Department." Jacobs, supra note 104, at911. A young John Kenneth Galbraith was appointed Deputy PriceAdministrator. See John Kenneth Galbraith, A Life in Our Times 124-41(1981).

(171.) Donald Wallace & Phillip H. Coombs, EconomicConsiderations in Establishing Maximum Prices in Wartime, 9 LAW &contemp. probs. 89, 89 (1942).

(172.) By convention, OPA used the same period as theAdministration used to calculate the "Excess Profits Tax"levied during the war. See Mansfield et al., supra note 93, at 31.

(173.) Id. at 32.

(174.) Id. at 281.

(175.) See Gillespie-Rogers-Pyatt Co. v. Bowles, 144 F.2d 361(Emer. Ct. App. 1944).

(176.) On October 3, 1942, President Roosevelt directed OPA toprevent "unreasonable and exorbitant" war profits. 3 C.F.R.1213 (1938-1943).

(177.) See Exec. Order 9328, 3 C.F.R. 1267 (1938-1943).

(178.) Robert A. Kagan, Regulatory Justice: Implementing a WagePrice Freeze 43 (1978).

(179.) Supra notes 105-07 and accompanying text.

(180.) Joseph A. Schumpeter, Capitalism, Socialism, and Democracy387 (1942).

(181.) Arant, supra note 5, at 908.

(182.) General Maximum Price Regulation, 7 Fed. Reg. 3153 (April28, 1942). Wittingly or not, OPA's title for the regulationharkened back to the "General Maximum" of 1793, a staple ofthe Reign of Terror in revolutionary France. See Henry Bourne, FoodControl and Price-Fixing in Revolutionary France, 27 J. Pol. econ. 73(1919).

(183.) Arant, supra note 5, at 908 n.7; Hyman & Nathanson,supra note 3, at 593.

(184.) Maximum Price Regulation No. 169, 7 Fed. Reg. 4653 (June 19,1942).

(185.) Hyman & Nathanson, supra note 3, at 594.

(186.) Id. at 594. Although large integrated packers sold 85% ofall meat products in the United States, the number of independent smallpackers and slaughterers was very large, and they sold most of the freshbeef available in northeast cities. Id. at 605-06.

(187.) Arant, supra note 5, at 908.

(188.) Little Beef Expected in Boston Now, None Expected Next Week,Boston Globe, July 23, 1942, at 1.

(189.) Id.

(190.) Solution to "Squeeze" on Prices Sought, BostonGlobe, July 23, 1942, at 6.

(191.) Sidney Rabinowitz was born in Lithuania and immigrated tothe United States in 1903. Rabinowitz started his own business (theColonial Provision Company) in 1918 after working in a meat processingplant. Later, in the 1950s, the Colonial company became one of thelargest meat dealers in the country. Rabinowitz was also one of thefounders of Brandeis University. See Deaths and Funerals: Throngs PayLast Tribute To Sidney Rabinowitz, Boston Globe, Aug 23, 1961, at 23;Colonial Provision Co. Starts Big Campaign, Boston Globe, May 8, 1932,at A53. Rabinowitz had a long history defending the civil rights ofimmigrants. See, e.g., Delicatessen Men Protest, N.Y. times, Mar. 25,1935, at 14.

(192.) Solution to "Squeeze" on Prices Sought, supra note190, at 6; Little Beef Expected in Boston Now, None Expected Next Week,supra note 188, at 6.

(193.) Little Beef Expected in Boston Now, None Expected Next Week,supra note 188, at 6.

(194.) Hyman & Nathanson, supra note 3, at 599 & n.47.

(195.) Stabilization Act of 1942, Pub. L. No. 77-729, 56 Stat. 765.

(196.) See Hearings Before S. Special Comm. to Study and SurveyProblems of American of Small Business Enterprises & H. Select Comm.to Conduct a Study and Investigation of the National Defense Program inits Relation to Small Business in the United States, 78th Cong. 1stSess. (Mar. 1, 3, 10, 1943), at 2 [hereinafter Hearings]; see alsoHearings Before the Select Committee to Investigate Executive AgenciesPursuant to H. Res. 102, Part 2, 78th Cong. (1943-44), at 1329-458(collecting hearings related to OPA's meat regulations).

(197.) Revised Maximum Price Regulation 169, 7 Fed. Reg. 10,381(Dec. 12, 1942).

(198.) Armour & Co. v. Bowles, 148 F.2d 529, 531 (Emer. Ct.App. 1945).

(199.) Hyman & Nathanson, supra note 3, at 596 ("Wholesalecuts were precisely defined in anatomical detail, and the sale of cutsnot in compliance was prohibited.").

(200.) Brief for Petitioners at 67, Yakus v. United States, 321U.S. 414 (1944) (No. 375) (Rottenberg was consolidated with Yakus).

(201.) 7 Fed. Reg. at 10,381-82.

(202.) Armour & Co., 148 F.2d at 531-32.

(203.) Id. at 532.

(204.) Id.

(205.) See H.R. No. 78-898 (1943) ("[I]t was obvious that theRegulation would ultimately result in the destruction of allnonprocessing slaughterers as a class."). Even the price lawyersadmitted that segments of the industry were in serious financial troubleby then. Hyman & Nathanson, supra note 3, at 601 & n.51.

(206.) See Armour & Co., 148 F.2d at 529.

(207.) Heinz v. Bowles, 149 F.2d 277 (Emer. Ct. App. 1945), vacatedand dismissed, 150 F.2d 546, cert, denied sub. nom E. Kahn's SonsCo. v. Bowles, 326 U.S. 719 (1945).

(208.) Hyman & Nathanson, supra note 3, at 597.

(209.) See Armour & Co., 148 F.2d at 529.

(210.) See Hearings, supra note 196.

(211.) Id. at 2.

(212.) Id. at 16.

(213.) Id. at 20.

(214.) Id. at 81.

(215.) See Armour & Co. v. Bowles, 148 F.2d 529 (Emer. Ct. App.1945); Heinz v. Bowles, 149 F.2d 277 (Emer. Ct. App. 1945).

(216.) 319 U.S. 182 (1943).

(217.) The Emergency Court meat litigation and the surroundingpolitics are explained in great detail in Hyman & Nathanson, supranote 3.

(218.) Armour & Co., 148 F.2d at 530.

(219.) Hyman & Nathanson, supra note 3, at 609.

(220.) See 8 Fed. Reg. 14,641 (Oct. 26, 1943). This group did notinclude independent meat packers like Albert Yakus. The subsidy isexplained in Hyman & Nathanson, supra note 3, at 609-10.

(221.) Armour & Co., 148 F.2d at 530.

(222.) Id.

(223.) The U.S. Attorney had already filed charges against them.Lockerty v. Phillips, 319 U.S. 182, 184-85, 188 (1942).

(224.) See id. at 184-85; Brief for Appellants at 6, Lockerty v.Phillips, 319 U.S 182 (1943) (No. 934), 1943 WL 54797 (specificallyalleging that "the Administrator's assistants have publicallydeclared that it was the intention of the Administrator to driveappellants and those similarly situated out of business").

(225.) Lockerty v. Phillips, 49 F. Supp. 513, 515 (D.N.J.),aff'd, 319 U.S. 182 (1943).

(226.) Id. at 516 (Fake, J., dissenting).

(227.) Lockerty, 319 U.S. at 189.

(228.) The Court heard oral argument on May 3, 1943. On May 6,Chief Justice Stone circulated a memorandum to the Associate Justicesstating that he wanted to dispose of the case "promptly" andasking them to respond by noon if this was "agreeable." All ofthe justices agreed, provided that Stone reserve the question of whethersection 204 was constitutional as applied in an enforcement action. Box68, Harlan Fiske Stone Papers, Manuscript Division, Library of Congress,Washington D.C. (copy on file with author). The opinion was released onMay 10. Lockerty, 319 U.S. at 182.

(229.) Roach v. Johnson, 48 F. Supp. 833, 834 (N.D. Ind.), vacatedsub nom. United States v. Johnson, 319 U.S. 302 (1943).

(230.) United States v. Johnson, 319 U.S. 302 (1943).

(231.) The facts recounted here and below are taken from the"Transcript of Record" filed in the Supreme Court, unlessotherwise noted. The record and briefs were retrieved from The Making ofModern Law: U.S. Supreme Court Records and Briefs, 1832-1978, gale,http://www.gale.com/c/making-of-modem-law-us-supreme-courtrecords-and-briefs-1832-1978 [https://perma.cc/93TN-GUAM].

(232.) Judge Wyzanski was a protege of Felix Frankfurter. Assolicitor for the Department of Labor under Frances Perkins, Wyzanskihelped to draft the National Industrial Recovery Act. See Peter H.Irons, The New Deal Lawyers 2324 (1982). Later, Wyzanski served in theSolicitor General's Office under Attorney General (by then Justice)Stanley Reed, where he earned a reputation as an able lawyer defendingNew Deal legislation, most notably the Wagner Act. Id. at 272-89.

(233.) United States v. Slobodkin, 48 F. Supp. 913, 915 (D. Mass.1943).

(234.) Id. at 915-16.

(235.) Id.

(236.) Id. at 916.

(237.) Id. at 915-16.

(238.) Id. at 917. While Judge Wyzanski analogized the EPCA to theHepburn Act, that analogy does not hold. Although the Hepburn Act madeICC orders enforceable within 30 days and precluded later challenges,the Commission first had to go through formal rulemaking. Regulatedentities could immediately appeal the order to a court of law, and thecourt could enter a preliminary injunction to "suspend[]" theorder during the pendency of the challenge. Hepburn Act, ch. 3591,[section] 4, 34 Stat. 584, 589 (1906) (amending Interstate Commerce Actof 1887, ch. 104, [section] 15, 24 Stat. 379, 384); see also Yakus v.United States, 321 U.S. 414, 473-74 (1944) (Rutledge, J. dissenting)(same); ICC v. Louisville & Nashville R.R. Co., 227 U.S. 88, 91-92(1913) (rejecting the argument that ICC rate orders are conclusive onthe courts and noting that the Hepburn Act "gave the right to afull hearing ... conferred the privilege of introducing testimony, andat the same time imposed the duty of deciding in accordance with thefacts proved").

(239.) See Brighton Packing Co. Held Guilty of Violating OPA BeefCeilings, Boston Globe, Apr. 8, 1943, at 5; see also Another Meat Dealeris Held in U.S. Court, Christian sci. Monitor, March 5, 1943.

(240.) Brief for the United States at 4-5, Yakus, 321 U.S. 414(Nos. 374, 375), 1944 WL 42926.

(241.) Rottenberg v. United States, 137 F.2d 850, 851 (1st Cir.1943); see also Convicted Meat Dealers Label Price Act asUnconstitutional, Boston Globe, 13 June 30, 1943, at 13. Judge CalvertMagruder, a Roosevelt appointee and former professor at Harvard, hadclerked for Justice Brandeis and later served as General Counsel for theWage and Hour Division of the Department of Labor during the height ofthe New Deal. See generally George Dargo, Calvert Magruder of the FirstCircuit: The Law Professor as Judge, 74 mass. L. Rev. 239 (1989); seealso Felix Frankfurter, Calvert Magruder, 72 Harv. L. Rev. 1201 (1959).

(242.) Rottenberg, 137 F.2d. at 858.

(243.) Id.

(244.) Id. at 856.

(245.) Id. at 857.

(246.) Id. at 858.

(247.) Petition for Writ of Certiorari to the United States CircuitCourt of Appeals for the First Circuit and Brief in Support of thePetition at 9, Rottenberg v. United States, 321 U.S. 414 (1944) (No.375). In one case, a district court had held that section 204(d) of EPCAviolated Marbury v. Madison, and had invalidated the rent controlprovisions of the Act because it did not require OPA to make findings offact. See Payne v. Griffin, 51 F. Supp. 588, 597 (M.D. Ga. 1943).

(248.) Memorandum of the United States at 9, Rottenberg v. UnitedStates, 321 U.S. 414 (1944) (No. 375).

(249.) Yakus v. United States, 320 U.S. 730 (1943).

(250.) See Brief for the Petitioners at 6-7, 78-81, Rottenberg v.United States, 321 U.S. 414 (1944) (No. 375).

(251.) See id. at 8-22.

(252.) Id. at 32-33.

(253.) Id. at 28-29.

(254.) Id. at 25.

(255.) Id. at 6, 33-34.

(256.) Id. at 7, 48.

(257.) Id. at 60-63,

(258.) Id. at 64.

(259.) Brief for the United States at 16, Yakus v. United States,321 U.S. 414 (1944) (Nos. 374, 375) ("The defendant may not ...raise any defense addressed to the validity of theregulation....").

(260.) Id. at 25.

(261.) Id.

(262.) Id. at 27.

(263.) Id. at 25-34.

(264.) Id. at 33.

(265.) Id. at 34.

(266.) Id. at 35.

(267.) See supra note 153 and accompanying text.

(268.) See Brief for the United States, supra note 259, at 36.

(269.) id.

(270.) id.

(271.) Id. at 38-39. This portion of the brief misstated the law.The most analogous case cited by the Solicitor General was United Statesv. Vacuum Oil Co., 158 F. 536 (W.D.N.Y. 1908) (construing the Elkins Actto deprive a shipper of the right to contest a filed rate in a criminalprosecution and upholding the statute against a due process challenge).However, as the district court had stressed in that case, the shippercould still seek to enjoin the rates and sue the railroads for damages.Id. at 540.

(272.) Brief for the United States, supra note 259, at 44.

(273.) See id. at 45-56.

(274.) See supra note 155 and accompanying text.

(275.) Brief for the United States, supra note 259, at 59.

(276.) See id. at 63-71.

(277.) 320 U.S. 549 (1944).

(278.) Id. at 555.

(279.) Id. at 554-55. In a later, post-Yakus case, the SupremeCourt limited its holding in Falbo to exhaustion and allowedJehovah's Witnesses to raise the invalidity of an inductionboard's order as a defense. Estep v. United States, 327 U.S. 114,123 (1946).

(280.) 320 U.S. 81 (1943).

(281.) The Library of Congress does not have a transcript of theoral argument, and no transcript is available in the Gale onlinecollection or in the Supreme Court Library.

(282.) Yakus v. United States, 321 U.S. 414, 434, 436, 438, 439,440 n.7 (1944).

(283.) See supra note 263 and accompanying text.

(284.) Yakus, 321 U.S. at 459-460 (Roberts, J., dissenting).

(285.) Id. at 419-20, 422-23, 431-32, 435, 439, 441-43 (majorityopinion). In this regard, Yakus differs from the Japanese internmentcases, which struggle to insist that exceptional wartime measures mightwell be unacceptable under peacetime conditions. See, e.g., Korematsu v.United States, 323 U.S. 214, 223 (1944); Hirabayashi, 320 U.S. at 101.

(286.) See Yakus, 321 U.S. at 423.

(287.) Id.

(288.) Id. at 426.

(289.) Id. at 424. The Schechter paragraph was added--to thedelight of Justice Frankfurter--in response to Justice Roberts'sargument that the court had overruled Schechter. Box 70, Harlan FiskeStone Papers, Manuscript Division, Library of Congress, Washington D.C.(copy on file with author).

(290.) Chief Justice Stone's argument deliberately misreadSchechter. It could not be "seriously contended," theSchechter Court had written, that Congress could delegate legislativeauthority to a trade association. "The question, then, turns uponthe authority which [section] 3 of the Recovery Act vests in thePresident to approve or prescribe." A.L.A. Schechter Poultry Corp.v. United States, 295 U.S. 495, 537 (1935) (emphasis added).

(291.) See infra note 310 and accompanying text.

(292.) Yakus is cited for that proposition to this day. See, e.g.,Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 474 (2001).

(293.) Yakus, 321 U.S. at 429-130.

(294.) Id. at 430-431.

(295.) Id. at 432.

(296.) Id. at 434.

(297.) Id.

(298.) Id. at 435.

(299.) Even conceding the majority's exhaustion rationale, theresult "was a harsh one toward the extremely numerous smallenterprises which might be affected and, realistically, might not havehad an opportunity to invoke the prescribed remedies." Fuchs, supranote 136, at 877.

(300.) Yakus, 321 U.S. at 443-444. Chief Justice Stone exaggerated.The statutes he cited imposed penalties only after a special proceeding,conducted through a formal hearing process followed by immediatejudicial review. See id. at 473-74 (Rutledge, J., dissenting); see alsoWadley S. Ry. Co. v. Georgia, 235 U.S. 651, 667 (1915) ("There isno room to doubt the power of the state to impose a punishment heavyenough to secure obedience to such orders after they have been found tobe lawful...." (emphasis added)).

(301.) Yakus, 321 U.S at 444.

(302.) Id.

(303.) Id. at 445-47.

(304.) Id. at 446.

(305.) Id. at 476-77 & n.33 (Rutledge, J., dissenting).

(306.) Id. at 438 (majority opinion).

(307.) Id. at 438 (emphasis added).

(308.) OPA lawyers would later criticize this holding. See Hyman& Nathanson, supra note 3, at 590 n.18 (arguing that a "morerealistic answer would seem to lie in the nature of the emergency thatthe statute was designed to meet.").

(309.) Yakus, 321 U.S. at 451 (Roberts, J., dissenting).

(310.) Id. at 452.

(311.) Id. at 458.

(312.) Id. at 459-460.

(313.) Id. at 468 (Rutledge, J., dissenting).

(314.) Cf. Crowell v. Benson, 285 U.S. 22, 62 (1932). Like theCrowell opinion, Justice Rutledge's Yakus dissent viewed dueprocess and judicial independence as two sides of the same coin. Asurrender of the constitutional baseline threatens both governmentoverreach and judicial contamination.

(315.) Yakus, 321 U.S. at 471 (Rutledge, J., dissenting).

(316.) Bowles v. Willingham, 321 U.S. 503, 526 (1944) (Rutledge,J., concurring). In this companion case decided on the same day asYakus, Justice Rutledge concurred on the basis that Willingham involved"civil" deprivations of "property," which, in hisview, were subject to less due process protections than criminaldeprivations of liberty. Id. at 525-26.

(317.) Yakus, 321 U.S. at 489 & n.41 (Rutledge, J.,dissenting). Rutledge added the note on March 24, 1944, three daysbefore the opinion was released to the public. Box 70, Harlan FiskeStone Papers, Manuscript Division, Library of Congress, Washington D.C.(copy on file with authors).

(318.) Mansfield et al., supra note 93, at 277-78.

(319.) Stabilization Extension Act of 1944, Pub. L. No. 383, 58Stat. 632.

(320.) Mansfield et al, supra note 93, at 277-78.

(321.) Id. at 278. The formal adjudication procedure was applicableonly to aggrieved parties filing a protest after September 1,1944. Id.

(322.) Id.

(323.) Heinz v. Bowles, 149 F.2d 277, 281 (Emer. Ct. App. 1945).

(324.) See Rottenberg v. United States, 137 F.2d 850, 851 (1st Cir.1943).

(325.) See Yakus v. United States, 321 U.S. 414, 458-59 (1943)(Roberts, J., dissenting) ("[N]o court is competent, on a mass ofeconomic opinion consisting of studies by subordinates of theAdministrator ... to demonstrate beyond doubt, that the considerationsand conclusions of the Administrator from such material cannot supportthe Administrator's judgment ... but a few of the stated purposesof the act.").

(326.) E. Kahn's Sons Co. v. Bowles, 326 U.S. 719 (1945).

(327.) See Danz v. Reconstruction Fin. Corp., 192 F.2d 1012,1012-13 (Emer. Ct. App. 1952) (discussing the amendment).

(328.) Hyman & Nathanson, supra note 3, at 625 & n.107.

(329.) Jacobs, supra note 104, at 934.

(330.) Hyman & Nathanson, supra note 3, at 627.

(331.) Emelyn Rude, The "Beefsteak Election": When MeatChanged the Course of American Politics, Time (Aug. 30, 2016),https://www.time.com/4471656/thebeefsteak-election/[https://perma.cc/3B5J- EH9B].

(332.) Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945).

(333.) SEC v. Chenery Corp., 332 U.S. 194 (1947).

(334.) Statutory law reflects this intuition. See, e.g., 33 U.S.C.[section] 1369(b)(2) (2012); 42 U.S.C. [section] 7607(b)(2); id.[section] 9613(a) (precluding judicial review of agency action inenforcement suits).

(335.) Cf. Henry Hart, The Power of Congress to Limit theJurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L.Rev. 1362 (1953) (discussed infra Part IV.A).

(336.) See generally Gillian E. Metzger, Foreword: 1930'sRedux: The Administrative State Under Siege, 131 HARV. L. Rev. 1 (2017).

(337.) Korematsu v. United States, 323 U.S. 214 (1944).

(338.) 317 U.S. 1 (1942).

(339.) Cf. Hart, supra note 335, at 1378-79 ("Name me a singleSupreme Court case that has squarely held that, in a civil enforcementproceeding, questions of law can be validly withdrawn from theconsideration of the enforcement court where no adequate opportunity tohave them determined by a court has been previously accorded. When youdo, I'm going back to re-think Marbury v. Madison.").

(340.) Id. at 1379-80 (Yakus sanctioned departures from due process"only because an alternative procedure had been provided which, inthe exigencies of the national situation, the Court found to beadequate." (emphasis added)).

(341.) See supra, notes 103, 283-85 and accompanying text. Ex postevidence supports our interpretation. Even before the case wasoverturned in Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018), the UnitedStates government never relied on Korematsu. It relies on Ex ParteQuirin only in extremis. It relies on Yakus all the time, with noconcession to wartime exigencies.

(342.) 434 U.S. 275 (1978).

(343.) 42 U.S.C. [section] 7607(b) (2012).

(344.) Adamo Wrecking, 434 U.S. at 278.

(345.) Id. at 284-85.

(346.) Id. at 291 (Stewart J., dissenting); id. at 293 (Stevens,J., dissenting).

(347.) Id. at 290-91 (Powell, J., concurring); see also UnitedStates v. Mendoza-Lopez, 481 U.S. 828, 838 n.15 (1987) (Yakus "wasmotivated by the exigencies of wartime ... and, most significantly,turned on the fact that adequate judicial review of the validity of theregulation was available in another forum."). More recently,Justice Alito questioned in oral argument whether Yakus "would bedecided the same way today and not in wartime" and suggested thatYakus is troubling on due process grounds. Transcript of Oral Argumentat 50, PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., No.17-1705 (U.S. Mar. 25, 2019).

(348.) Hart, supra note 335, at 1369.

(349.) See Yakus, 321 U.S. 414, 451-52 (1944) (Roberts, J.,dissenting).

(350.) See id. at 468 (Rutledge, J., dissenting).

(351.) See Davis, supra note 54, [section][section] 12, 68,91,179,190; Walter Gellhorn, administrative Law: Cases and Comments142-151, 812 (2d ed. 1947) (excerpting and discussing Yakus); WALTERGellhorn & Clark Byse, Administrative Law: Cases and Comments99-101, 747-55 (3d ed. 1954) (excerpting and prominently discussingYakus and Willingham as delegation and due process cases); Louis L.Jaffe & Nathaniel l. Nathanson, Administrative Law: Cases andMaterials 34-48, 72-74, 107-139, 761, 906-909 (4th ed. 1976); Robinson& Gellhorn, supra note 54, 67-106 (prominently discussing andexcerpting Yakus and the doctrines at issue in the case).

(352.) See Davis, supra note 54, [section] 8.

(353.) Id. [section] 1; see also JAFFE & Nathanson, supra note351, at 1 ("[O]ur purpose, here, is to consider the making andenforcing of law conceived as public policy by means of what is nowcalled the administrative process.").

(354.) Dickinson, supra note 23, at 75.

(355.) Vermeule, supra note 24.

(356.) Id. at 28-29, 214.

(357.) Id. at 24.

(358.) The Crowell Court, Professor Vermeule observes, alreadythought in such "marginalist" terms (except when it did not).Following David Currie, Vermeule describes Crowell as"schizophrenic." Id. at. 28, 214. While that may be a tadharsh, some of Chief Justice Hughes's rule-of-law encomia do readlike a dissent from the more "marginalist" portions of hisopinion.

(359.) Id. at 7.

(360.) Id. at 44-45.

(361.) Cf. id., at 2.

(362.) Supra Part 1.

(363.) See Kristin Hickman & Nicholas R. Bednar, Chevron'sInevitability, 85 GEO. Wash. L. Rev. 101, 125-26 (2017) (noting recentcalls to overrule Chevron).

(364.) See, e.g., Bruce Ackerman, The Decline and Fall of theAmerican Republic 4-12 (2010); Jessica Bulman-Pozen, ExecutiveFederalism Comes to America, 102 Va. L. Rev. 953 (2016); Christopher C.DeMuth, Can the Administrative State Be Tamed? 8 Journal of LegalAnalysis 121 (2016).

(365.) See Abbe R. Gluck et al., Unorthodox Lawmaking, UnorthodoxRulemaking, 115 COLUM. L. Rev. 1789 (2015).

(366.) See Hamburger, supra note 26.

(367.) Adrian Vermeule, Our Schmittian Administrative Law, 122Harv. L. Rev. 1096 (2009).

(368.) Robert R. Gasaway & Ashley C. Parrish, AdministrativeLaw in Flux: An Opportunity for Constitutional Reassessment, 24 geo.mason L. Rev. 392 (2017).

(369.) See Metzger, supra note 336, at 3-4 (criticizingcontemporary "anti-administrivism"); Cass Sunstein &Adrian Vermeule, The New co*ke: On the Plural Aims of Administrative Law,2015 SUP. CT. Rev. 41, 47-54 (discussing these judicial opinions).

(370.) Vermeule, supra note 24, at 44-45.

(371.) Metzger, supra note 336.

(372.) Hamburger, supra note 26; Lawson, supra note 26.

(373.) Auer v. Robbins, 519 U.S. 452 (1997); Baltimore Gas &Electric Co. v. NRDC, Inc., 462 U.S. 87 (1983); Chevron U.S.A. v. Nat.Res. Def. Council, Inc., 467 U.S. 837 (1984).

(374.) See Lawson, supra note 26.

(375.) Sunstein & Vermeule, supra note 369, at 41-42.

(376.) See Vermeule, supra note 24, at 209-15. Consistent withProfessor Vermeule's analysis and prediction, we frankly wonderwhether the proponents of simply repealing Chevron (judicially or bystatute) have fully considered the consequences of unleashing the courtson administrative agencies, in circ*mstances where the judiciary itselfis deeply divided over constitutional and jurisprudential firstprinciples. That concern, among others, prompted Chevron in the firstplace.

(377.) Nelson, supra note 28, at 594-602.

(378.) We recognize the danger of overstating the point. The notionof private right had always been a mix of common-law background rulesand intuitions, and thus somewhat fluid and messy. (Professor Nelsonacknowledges the point. Id at 567.) Nothing in the Constitution itselfimmunizes market transactions per se; and by the time of Yakus, theSupreme Court had given Congress a very wide berth in subjecting privatetransactions to public control. It had sanctioned minimum priceregulations for products such as milk, see Nebbia v. New York, 291 U.S.502 (1934); minimum wage regulations for ordinary services, see W. CoastHotel v. Parrish, 300 U.S. 379 (1937); and the state cartelization ofentire industries, see Parker v. Brown, 317 U.S. 341, 355 (1943). Evenso, there is something gratuitous and (to our minds unnerving) aboutYakus. The Court could have found any number of ways of keeping Al Yakusout of jail without thwarting the EPCA's objective (for example, bystaying the prosecution until the relevant rule had actually beensubject to pre-enforcement review in the Emergency Court). And it couldhave found a way of re-articulating essential constitutionalrequirements (for example, by suggesting that the EPCA might not passconstitutional muster in peacetime). The Court said, and did, no suchthing. Instead, the Court characterized the statute as the baseline andthe defendants' contentions as extraordinary and perhaps evenextravagant. See Yakus v. United States, 321 U.S. 414, 444 (1944).

(379.) Cf. supra note 339 and accompanying text.

(380.) Justice Thomas in particular has urged a broadre-examination of administrative law in light of first principles. SeePerez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1220 (2015)(Thomas, J., concurring); Dep't of Transp. v. Ass'n of Am.R.Rs., 135 S. Ct. 1225, 1243 (2015) (Thomas, J., concurring); B & BHardware, Inc. v. Hargis, 135 S. Ct. 1293, 1310 (2015) (Thomas, J.,dissenting).

(381.) Important contributions to the scholarly literature point inthis direction. See, e.g., Gasaway & Parrish, supra note 368(attempting such a reconciliation and contending that the common lawprovides an ingenious "adjudicatory baseline" that functionsas our legal system's "benevolent omnipresence on theground"); Mila Sohoni, Agency Adjudication and JudicialNondelegation: An Article III Canon, 107 Nw. U. L. Rev.' 1569(2013); Nathan S. Chapman & Michael W. McConnell, Due Process asSeparation of Powers, 121 YALE L.J. 1672 (2012).

Caption: "SEDER--Albert Yakus (left), president of Men'sAssociates of Boston's Jewish Memorial Hospital, joins Rabbi andMrs. David Alpert for Seder service at hospital last night incommemoration of Passover." Leo Shapiro, Days of Passover Welcomedin Hub, Boston Globe, Mar. 30, 1972, at 6.