Schroder v. Bush

• Decision Date: 24 August 2001
• Docket Number: No. 00-1357,00-1357
• Citation: 263 F.3d 1169
• Parties: (10th Cir. 2001) EUGENE SCHRODER; EDWIN PETROWSKY; R. RUSSELL GRIDER; and WESLEY MYERS, Plaintiffs-Appellants, v. GEORGE W. BUSH, President of the United States; ANN M. VENEMAN, United States Secretary of Agriculture; PAUL H. O'NEILL, United States Secretary of the Treasury; <A HREF="#fr1-*" name="fn1-*">* and UNITED STATES OF AMERICA, Defendants-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1169

263 F.3d 1169 (10th Cir. 2001)

EUGENE SCHRODER; EDWIN PETROWSKY; R. RUSSELL GRIDER; and WESLEY MYERS, Plaintiffs-Appellants, v. GEORGE W. BUSH, President of the United States; ANN M. VENEMAN, United States Secretary of Agriculture; PAUL H. O'NEILL, United States Secretary of the Treasury;^* and UNITED STATES OF AMERICA, Defendants-Appellees.

No. 00-1357

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

August 24, 2001

Appeal from the United States District Court for the District of Colorado. (D.C. No. 00-K-154) [Copyrighted Material Omitted] Walker Fowler Todd, Chagrin Falls, Ohio, for Plaintiffs-Appellants.

Peter J. Krumholz, Assistant United States Attorney (Thomas L. Strickland, United States Attorney, with him on the brief), Denver, Colorado, for Defendants-Appellees.

Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and BRIMMER,^** District Judge.

EBEL, Circuit Judge.

Appellants are farmers or ranchers who live and work within the territorial boundaries of the Tenth Circuit and who seek declaratory and injunctive relief against the President of the United States, the United States Secretary of Agriculture, the United States Secretary of the Treasury, and the United States of America (collectively, "Appellees"). Appellants seek, in essence, an order requiring Appellees and their agents to maintain market conditions favorable to small farmers. The district court dismissed for lack of subject matter jurisdiction, writing, "The Complaint seeks to have this court determine political questions which are properly addressed [by] the elected branches of the government. This Court has no jurisdiction over the discretionary acts of either. Plaintiffs' remedies are at the polling place, not the courts." Schroder v. Clinton, No. 00-CV-154-K (D. Colo. July 6, 2000) (hereinafter "D.Ct. Order"). We agree that Appellants ask us to consider nonjusticiable political questions and that Appellants must seek relief from the elected branches of government. We therefore AFFIRM the district court's dismissal.¹

BACKGROUND

A. Plight of the Small Farmer in America

Every branch of the federal government has recognized how difficult it is for small farmers to make a living by farming.² See William J. Clinton, State of the Union Address of January 27, 2000, reprinted in 2000 U.S.C.C.A.N. D7, 2000 WL 85684, *11 ("[D]roughts, floods, and historically low prices have made these times very bad for the [family] farmers."); S.J. Res. 171, 103rd Cong. (1994) (1994) (joint proclamation of "Small Family Farm Week") (stating "the plight of the small family farmer has been in jeopardy in recent times [and] many small family farms continue to operate in the face of financial and credit difficulties"); Mulroy v. Block, 574 F. Supp. 194, 195-96 (N.D.N.Y. 1983) ("[I]n a time when this nation is experiencing the decline and threatened extinction of the individual farmer, it is particularly disturbing to see legislation such as this which will undoubtedly have a devastating effect on the small scale dairy farmers of this nation."); In re Moeller, No. 90-35017, 1990 WL 208617, at *1 (9th Cir. Dec. 14, 1990) ("Appellants made spirited arguments before this court regarding the plight of family farmers who have successfully farmed the same land for generations. We sympathize with their concerns."). In a similar case from 1988, we acknowledged our awareness of "the serious plight of the family farmer in America. We sympathize with farmers struggling to secure their livelihoods and, more fundamentally perhaps, maintain their way of life." Schroder v. Volcker, 864 F.2d 97, 99 (10th Cir. 1988).³ A 1998 report from the United States Department of Agriculture demonstrates that, more than a decade after Schroder, times are still hard for small farmers in America: "Today, we have 300,000 fewer farmers than in 1979, and farmers are receiving 13 percent less for every consumer dollar. Four firms now control over 80 percent of the beef market. About 94 percent of the Nation's farms are small farms, but they receive only 41 percent of all farm receipts." Nat. Comm'n on Small Farms, U. S. Dep't of Agric., A Time to Act: A Report of the USDA National Commission on Small Farms, at 8 (Jan. 1998).

We remain sympathetic to the plight of the small farmer, but we also remain in agreement with the judgment of both the district court in this case and the Schroder court thirteen years ago: "[W]e believe the issues raised by plaintiffs in this suit are basically political questions which must be resolved in the legislative arena." Schroder, 864 F.2d at 99.⁴

B. Relief Sought by Appellants

Appellants Eugene Schroder from Campo, Colorado; Edwin Petrowsky from Pratt, Kansas; R. Russell Grider from Clovis, New Mexico; and Wesley Myers from Clovis, New Mexico sought "a moratorium on farm foreclosures[⁵] and an order requiring the President, Secretary of the Treasury, Secretary of Agriculture, and their agents to control United States currency and to maintain market conditions so as to be favorable to American farmers." They admitted that controlling currency and maintaining favorable market conditions "would require congressional or judicial review of agricultural product and marketing controls, bilateral trade agreements that affect U.S. agriculture, the activities of the Exchange Stabilization Fund, and enforcement of the anti-trust laws by the U.S. Department of Justice with respect to corporate competitors of family farmers . . . ." They sought a permanent injunction "requiring the Secretary of the Treasury and the U.S. Trade Representative . . . of the President to work together and cooperate in negotiating and implementing foreign trade agreements" that would benefit small farmers.

Appellants alleged that a national emergency in Agriculture was declared "on May 12, 1933, and has yet to be terminated 66 years later," and requested a declaratory judgment that "the state of National Emergency declared by Congressional Statute in 1933 still exists." They also demanded declaratory judgments that "sub-par agricultural commodity prices shall be allowed as an affirmative defense in any action for debt" and that "the event of the commonly quoted U.S. dollar index . . . rising above 95 shall be allowed as an affirmative defense or as a basis for a stay of proceedings for foreclosure [against any individual, non-corporate U.S. farmer]."⁶

Last, they contended the federal government has effected a taking without paying just compensation in violation of the Fifth Amendment.

DISCUSSION

A. The Political Question Doctrine

After reviewing Appellants' prayer for relief, we are convinced that the district court was correct to dismiss Appellants' claims as nonjusticiable political questions. Since it is a legal question, we review de novo the application of the political question doctrine. See Stuart v. United States, 813 F.2d 243, 246 (9th Cir. 1987), overruled on other grounds by United States v. Stuart, 489 U.S. 353 (1989).

Prudence, as well as separation-of-powers concerns, counsels courts to decline to hear "political questions." See Baker v. Carr, 369 U.S. 186, 210 (1962); Nixon v. United States, 506 U.S. 224, 252-53 (1993) (Souter, J., concurring in the judgment); Alexander M. Bickel, The Least Dangerous Branch 125-26, 184 (2d ed. 1986).⁷ When deciding whether issues present political questions, courts must make a "discriminating inquiry into the precise facts and posture of the particular case," for it resists "resolution by any semantic cataloguing." Baker, 369 U.S. at 217. As "there is no blanket rule," id. at 215, application of the doctrine must be made on a "case-by-case" basis, id. at 211.

The tangled roots of the political question doctrine stretch back to Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). See id. at 170 ("Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court."); see also generally id. at 164-66. The most thorough explication of the doctrine was provided in Baker v. Carr, in which the Supreme Court gathered the doctrine's "analytical threads." 369 U.S. at 211. It wrote, in this well-known passage,

Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Id. at 217.

We have no doubt that this case presents textbook examples of political questions and thus that it was properly dismissed by the district court. The Constitution commits to Congress the regulation of domestic and foreign commerce, see U.S. Const. art. I, § 8, cl.3, the establishment of bankruptcy law, see id. cl.4, and the regulation of currency, see id. cl.5. To the President, the Constitution commits the "Power, by and with the Advice and Consent of the Senate, to make Treaties." U.S. Const. art. II, § 2, cl.2. "The Constitution confers a vast amount of power upon the political branches of the federal government in the area of foreign policy particularly foreign commerce." Made in the USA Foundation v. United States, 242 F.3d 1300, 1313 (11th Cir. 2001) (gathering constitutional provisions and Supreme Court cases). The Supreme Court has recognized that "the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the...