101. A Switch In Time…
“I’ll tell you what the greatest tragedy in American history was. It was in 1939, when the Supreme Court destroyed the system of checks and balances that our Founding Fathers intended. When Howard Cameron ignored the constitutionally mandated consent of the sitting Senate to force through one of his hatchet-men via an illegal, illegitimate recess appointment and single-handedly shifted the court’s balance to give the government undue control over the economy. That was when the American free market died. American businesses could have saved themselves from price controls, wage floors, and inefficiency, but even the wise captains of industry had gotten themselves caught up in Cameron’s lofty promises.
It is one of the great tragedies of history that Howard Cameron is remembered as a popular hero who saved the economy, who remade his party in his own image, who had no qualms bending the constitution to his will to get what he wanted. In truth, he was an authoritarian and something of a strongman, despite abiding by the barest of democratic norms. No sooner was Justice Lowell found dead in his home than Cameron had a nominee, his loyal little Stanley Cleaver, waiting in the wings. And the Court was set to strike down his blatantly unconstitutional Fair Standards Code, so of course he had to rush. The Senate wasn’t in the mood for that, and was preparing to scrutinize Cleaver’s record, which was essentially non-existent because he was a corporate lawyer, not a jurist.
But the November recess [1] was coming up, and so as soon as the Senate headed home for the week, Cameron immediately granted Cleaver a recess appointment, and just in time for arguments over the Code. In a rushed judgement, no doubt due to pressure from the administration, the Supreme Court ruled 5-4 that the Code was constitutional, in clear defiance of all established law and judicial precedent. Of course, as soon as December rolled around people were up in arms about it, and some Senators and businessmen sued, rightly accusing Cameron of circumventing the advice-and-consent clause while the Senate was still legally in session, merely in recess for a month [2]. But as the case worked its way through, Cameron marshalled his devoted legions and narrowly forced Cleaver’s confirmation through the Senate in a matter of days. The gutless Supreme Court then upheld the constitutionality of Cleaver’s recess appointment, and Cleaver himself lacked the common decency to recuse himself from the decision.
Since that fateful month, the federal government in general and the executive branch specifically has usurped more and more power from the other branches and levels of government. They continue to stifle the economy through their price controls and technocratic autocracy while inflation continues to climb past 15% [3]. When will it end? When will the public’s fascination with the cult of Howard Cameron end and they see the truth? For too long this myth has festered in the national conscience and it’s become just as ingrained into our collective minds as Washington and the cherry tree or what have you. It’s frankly dangerous for our country to go on like this. Argentina, our old hemispheric rival, has an inflation rate of only 2.5%, they have a budget as close to balanced as any major power, and most importantly their political system is unused to these demagogic cults of personality. There is no Cameronism there. Sure, leaders like Alem or Ferraro or the Cleburnes are beloved there, but no one has turned their policies into dogmas the way we have with Cameron.
We don’t see this kind of judicial manipulation and debasement in other modern, civilized countries. It’s uniquely American that the judiciary has been corrupted into another political lever with which to advance policies and ideologies. They certainly don’t do it in Argentina, nor even in China or western Europe. Howard Cameron not only circumvented the Senate’s constitutionally mandated duties, but he also placed on the bench an utter hack, a man with no real legal experience. Stanley Cleaver was a corporate lawyer; he had never argued constitutional law in his life. His only qualifications were being Cameron’s friend and being unquestioningly loyal to Cameron’s directives. Cameron might as well have nominated himself to the bench instead. And now, you know, we have the President appointing his campaign manager to the bench, and there’s the whole case of whether tariffs count as a matter of national security that’s pending before the court. Precedents matter and Howard Cameron initiated some of the very worst, most damaging and anti-democratic precedents in our American political tradition.”
-From “A CONVERSATION WITH PATRICIA LINZ, R. M. Berryhill School of Political Science, Charleston College, February 7th, 2025
“Less than two years after its implementation, the Fair Standards Code had lost its initial near-unanimous support. While still supported by many sectors of the economy, some businessmen chafed at the price controls and wage floors, especially small, non-corporate businesses. Often, independent tradesmen found themselves unable to compete with larger firms under the regulations and prices set by the government. In one egregious case, a tailor in Cincinnati was fined for selling a suit at 35 cents rather than the government-mandated 40 [4], while another was arrested because the fabrics that he made his suits from were home-spun and therefore had not been inspected and approved by officers of the Department of Industry and Planning’s Code enforcement division. Coal companies were outraged when the DIP imposed new labor codes on the industry to avert a potentially ruinous coal miners’ strike in Pennsylvania and western Virginia [5]. By the spring of 1938, discontent among both small businesses and coal companies was at a breaking point, and the two groups pooled their resources to file suit against the government and try and have the Supreme Court restrict the Fair Standards Code’s scope and the DIP’s enforcement authority.
The plaintiffs used the arrest of Samuel Seely, the tailor arrested for using homemade materials in his suits, as their main case, with coal executives joining in to end the new wage floors and collective bargaining stipulations that Cameron and DIP secretary Clarence Dern had imposed. Their lawyers alleged that the Fair Standards Code violated the Commerce Clause because it overstepped the federal government’s constitutional bounds by regulating both the “direct” and “indirect effects” of interstate commerce. Seely’s lawyers argued that Congress could only lawfully regulate the former and, since Seely only sold his suits locally, the elements of the Code that led to his arrest and fines were unconstitutional. The coal companies also claimed that the DIP’s enforcement of labor union protections violated the Commerce Clause because all the coal mining and labor contracts took place in one state and therefore were only indirectly related to interstate commerce. Lower courts took a conservative reading of the Commerce Clause and sided with Seely and his allies, as the case Seely v. Dern worked its way towards the Supreme Court’s docket.
It was no surprise to political observers that the Supreme Court decided to hear Seely, and it was also likely that the court would strike down key provisions of the IROA and severely limit the operations of the DIP and FSC. The Court sat at a 5-4 conservative/progressive split, with five justices appointed by the past three Democratic presidents (Hepburn and Delaney each appointed two and Cabell one), and four by the past two Whigs (one elderly McGovern nominee and three from President Fountain). However, right before oral arguments on the case began at the end of October, Justice Nathan Lowell, a Hepburn appointee, suffered a severe stroke and died hours later, throwing the balance of the court into doubt. President Cameron, anxious to protect one of his most significant legislative achievements, prepared to nominate his close associate Stanley Carver, to fill the seat. However, just the day after Cameron made his announcement, the House and Senate voted to adjourn for their month-long November recess in a bid by anti-personalist Whigs to stall Cameron’s efforts to install one of his hatchet-men on the bench.
Rather than allow the Senate to slow-walk the confirmation process and risk Cleaver’s rejection by the Judiciary committee, Cameron took the unprecedented step of giving Cleaver a recess appointment to the Supreme Court while Congress was still technically in session, denouncing the Senate for “shrinking from their duty.” Cleaver quickly took his place on the bench, sitting in on oral arguments and preparing his decision. It only took the justices a speedy two weeks to issue a formal ruling: by a 5-4 margin, the Supreme Court ruled that the Industrial Reconstruction and Organization Act was constitutional, and that the Fair Standards Code and the Department of Industry and Planning had not overstepped the constitutional boundaries established by the Commerce Clause. Cameron celebrated the court’s ruling in Seely v. Dern, but many were outraged at his conduct. Congress quickly agreed to return to Washington, while several members of the judiciary committee sued, claiming that Cameron’s recess appointment of Cleaver was unconstitutional because Congress was still legally in session.
Meanwhile, Cameron renominated Cleaver to the Supreme Court and all but dared his fellow Whigs to reject him. In his radio addresses, the President claimed that “the reckless forces of reckless business are arrayed against you, the common men. They have tried to subvert the constitution through the courts but were only turned back at the eleventh hour, and now they try to subvert both the constitution and the courts in their avaricious crusade.” Even as the legal challenge to Cleaver’s recess appointment landed before the Supreme Court, the Senate forwent a contentious fight over Cleaver’s relatively light resume and confirmed him by a vote of 56-30. With Cleaver formally a Supreme Court justice, the effort to nullify his recess appointment fizzled out as the court ruled in another 5-4 decision that, because Congress was “in the President’s judgement, de facto not in session,” his recess appointment was constitutional. Though Democrats criticized this ruling as eroding the system of checks and balances, Cameron’s supporters were overwhelmingly supportive of his actions during the brief constitutional crisis. Having once again stared down the moderates and won, Cameron’s grip on his Whig party only grew tighter…”
-From THE DETROIT LION by John Philip Yates, published 2012
[1] TTL Congress has taken to giving itself a month off for Thanksgiving, which has been a federal holiday since the Cox administration in the early 1870s.
[2] President Obama ran into similar constitutional objections when he recess-appointed Richard Cordray to lead the CFPB while the Senate was technically in session.
[3] As Peronist as the US becomes, we’ll never get quite as bad as OTL Argentina simply because of the sheer size of the American economy.
[4] This happened IOTL with the NRA.
[5] The NRA threatened to do this OTL but were ultimately able to force the coal companies to come to an agreement with the unions.
