Yakus and the Administrative State

59 Pages Posted: 5 Dec 2015 Last revised: 9 Nov 2017

See all articles by James Conde

James Conde

George Mason University, Antonin Scalia Law School

Michael Greve

American Enterprise Institute (AEI); George Mason University - Antonin Scalia Law School, Faculty

Date Written: December 3, 2015


In Yakus v. United States (1944), the U.S. Supreme Court sustained the conviction of a Boston meat dealer accused of violations of the Emergency Price Control Act and of price regulations issued by the federal Office of Price Administration (OPA) — without affording the accused an opportunity to challenge the validity of the rules under which he was convicted. The case is now mostly forgotten; in Supreme Court opinions and scholarly treatises, it appears (if at all) as a wartime embarrassment or a marginal case about the exhaustion of administrative procedures. At the time, though, Yakus was viewed by combatants on all sides as a case that would define the contours of constitutional government and of the emerging administrative state. Prominent textbooks of the post-War era afford prominent status to Yakus as a foundational case for Administrative Law.

This article tells the story of Yakus v. United States. Close examination of the litigation and its context, we argue, shows that Yakus was not an awkward wartime case that is easily cabined in technical exhaustion doctrines: it is in fact foundational to the modern administrative state. The Yakus lessons that we have forgotten are the ones that we want to forget.

Keywords: administrative law, administrative state, Administrative Procedure Act, APA, delegation, due process, Emergency Price Control Act, exhaustion of remedies, Ex Parte Young, New Deal, price control regulations, Schechter Poultry, Yakus v. United States

JEL Classification: K23

Suggested Citation

Conde, James and Greve, Michael, Yakus and the Administrative State (December 3, 2015). George Mason Legal Studies Research Paper No. LS 15-43, Available at SSRN: https://ssrn.com/abstract=2698833 or http://dx.doi.org/10.2139/ssrn.2698833

James Conde

George Mason University, Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Michael Greve (Contact Author)

American Enterprise Institute (AEI) ( email )

1150 17th Street, N.W.
Washington, DC 20036
United States

George Mason University - Antonin Scalia Law School, Faculty

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