Academic journal article Harvard Journal of Law & Public Policy

Yakus and the Administrative State

Academic journal article Harvard Journal of Law & Public Policy

Yakus and the Administrative State

Article excerpt

INTRODUCTION I.   THE OUTWORKS OF AN ELABORATE STRUCTURE:      ADMINISTRATIVE LAW, CIRCA 1940 II.  THE NEW DEAL GOES TO WAR      A. The Emergency Price Control Act: Origins         and Structure      B. The New Dealers' Defense III. 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 End IV.  CONCLUDING REMARKS: THE LEGACY AND      Lessons of Yakus      A. Yakus v. United States: Dialectics      B. The Lessons, Perhaps, of Yakus 


On February 24, 1943, a grand jury in Boston indicted Albert Yakus, president of the Brighton Packing Company, for selling beef in violation of 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 the vast black market in meat that developed during the war as a result of OPA's price control regulations. (2)

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

In Congress and in the halls of the New Deal bureaucracy, the meat dealers complained that they were being squeezed out of existence by OPA's price regulations. They also fought back in court, and their various challenges to OPA's regulations and to the EPCA reached the Supreme Court on several occasions.

Yakus v. United States was the final, most significant challenge. The meat dealers argued that any statute had to provide criminal defendants with some effective means of testing, in an independent court, the validity of a rule under which they were being prosecuted. (7) The EPCA, they argued, violated that cardinal principle. In an opinion authored by Chief Justice Harlan Fiske Stone, the Supreme Court roundly rejected the meat dealers' contentions. Petitioners, the Court declared, had failed to exhaust the administrative remedies provided by the EPCA. (8) Thus, the fact that the statute categorically barred courts from entertaining challenges to OPA's regulations in enforcement proceedings posed no constitutional problem. (9) Albert Yakus, a highly respected member of the local community and leader of his synagogue, went to jail. (10)

This Article recounts the story of Yakus v. United States in considerable, often depressing detail. The enterprise, we readily acknowledge, may seem of interest mostly to legal historians, rather than doctrinally or practically oriented scholars. Yakus is little more than a footnote cite in current Constitutional Law textbooks, (11) and a hiccup in the standard Federal Courts curriculum. (12) And so far as the administrative law profession is concerned, the case seems to have slipped down a memory hole. Textbooks and treatises mention Yakus as a case about the exhaustion of administrative remedies, (13) pre-enforcement review, (14) or similar issues (15)--but always in passing. As for the case law, stray cites aside, Yakus has figured in only a handful of Supreme Court decisions. (16) Nevertheless, we persist. Our close examination aims to show that the near-forgotten Yakus case should command attention in the contemporary, ideologically fraught debate over the administrative state and its law.

Yakus v. United States arose over an extraordinary statute--a veritable monument to the New Dealers' vision of the administrative process and administrative government. …

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