"Sea Change and Power Grab: Congress Was Conned by the Courts in 1948"
Paul Andrew Mitchell, B.A., M.S.
Private Attorney General (18 U.S.C. 1964(a))
Americans who have been following the "drama unfolding" around
the two Acts of Congress signed by President Truman on June 25, 1948,
are already familiar with key features of that history.
What is not fully understood is the subtle yet fundamental differences
that distinguish constitutional courts from legislative tribunals.
Yes, one group originates in Article III of the U.S. Constitution,
the other group originates in Article I of the U.S. Constitution.
What are the differences, and why do they matter?
A good way to develop a deeper understanding of these differences
one mode of judicial notice is entirely mandatory upon Federal Courts;
a second mode of judicial notice is entirely discretionary, allowing a
Federal Judge to take judicial notice or not take judicial notice,
as the Judge decides.
The general mode of operation or "modus operandi" of legislative tribunals
is very similar to discretionary judicial notice. If a Party to litigation in
such a tribunal insists on enjoying a Fundamental Right that is guaranteed
they can enforce that Right or not enforce that Right, as they decide.
This modus operandi is starkly different from the mode of operation
of constitutional courts established under Article III of the U.S. Constitution.
Not only do Fundamental Rights impose mandatory obligations upon
those courts. The damaged Party also has a Fundamental Right to
effective remedies for any and all violations of those Rights,
notwithstanding that the violations were committed by persons
acting in some official capacity.
That guarantee of effective remedies is expressly stated
a United States Treaty elevated to supreme Law of the Land
by the Supremacy Clause in the U.S. Constitution.
Article 2 of that ICCPR goes on to ensure that any persons
whose rights or freedoms guaranteed by that Treaty are violated
shall have those rights determined by competent judicial,
administrative or legislative authorities.
This point about courts of competent jurisdiction is extremely
important in this context. If Congress decides that
a legislative tribunal should have original jurisdiction
to adjudicate any given matter, the Act of Congress doing so
must make it entirely clear that a constitutional court
does not enjoy that same jurisdiction, or a constitutional court
shares concurrent jurisdiction with a legislative tribunal.
There are instances in Federal laws which do confer
original jurisdiction on both types of Federal courts.
The Civil RICO statute at 18 U.S.C. 1964 comes to mind:
Section 1964(a) expressly names the district courts of the United States,
Section 1964(c) expressly names the United States district court.
Although the latter conclusion is required of any objective reading
of that Civil RICO statute, it is also reasonable to ask whether or not
Congress has been fully aware of the differences distinguishing
these two types of Federal courts.
We believe the relevant historical evidence justifies the conclusion
that Congress has not been fully aware of those differences,
and a demonstrable vagueness has rendered its Acts
unconstitutional ab initio.
On the contrary, the historical context surrounding the
President's signature on the two Acts of June 25,1948,
generates more suspicion than anything else, particularly
when the real motives of the drafters are exposed.
For example, why did President Truman order a
Special Session of Congress during an election year, 1948?
The entire House and one third of the Senate were
already home campaigning.
In point of fact, switching constitutional courts to legislative tribunals
inside the 50 States of the Union was done by means of stealth,
deception and blatantly unconstitutional means. The most obvious
and most painful examples of those unconstitutional means
were the two Abrogation Clauses added to those two Acts of Congress,
Although official criticisms of those Abrogation Clauses are rare
and hard to find, our legal research did locate one objection by
Rep. Kastenmeier. He complained that the Abrogation Clause
in the Rules Enabling Act was "unwise and potentially unconstitutional".
That objection can be confirmed in the legislative history of the
A more dramatic illustration of deception can be confirmed
in the "Schedule of Laws Repealed" that was published
in Miscellaneous Provisions that were never codified
anywhere in the U.S. Code. The legislative history
very clearly says:
"This method of specific repeal will relieve the courts
of the burdensome task of ferreting out implied repeals."
In other words, if a statute conferring original jurisdiction
did not appear anywhere in that Schedule of Laws Repealed,
it remained unchanged and it remained unaffected in any way
when the two Acts of June 25, 1948 were revised, codified and
enacted into positive law, all on the same day.
It is also very revealing that those Miscellaneous Provisions
also state the intent of Congress i.e. continuations of existing law!
In other words, Congress told the Federal courts that
those courts were prohibited from implying any repeals
or implying subtle amendments to jurisdictional statutes
when a given statute was not mentioned in that Schedule.
The general rule here is that repeals by implication are never favored.
The clear intent of Congress was to continue existing laws
whenever such laws were not being repealed and
whenever such laws were not being amended either.
We applied that prohibition to the Lanham Act by proving
that its grant of jurisdiction was not mentioned in that Schedule;
and, consequently, that grant continues even today
This finding was not quite earth shaking, however,
chiefly because the Lanham Act is not very well known,
even among experienced legal professionals.
What did shake the earth like an 8.0 earthquake
on the Richter Scale, was our application of that
same methodology to the grant of criminal jurisdiction
at 18 U.S.C. 3231. Strictly construed, as it should be,
that statute continues even today to confer original
criminal jurisdiction on the Article III District Courts
The United States District Courts are not mentioned
anywhere in that statute!
Of equal importance is the fact that Section 3231
is also not mentioned anywhere in the Schedule
Provisions discussed above.
Without any reasonable doubts, this finding
does have extremely far-reaching legal consequences.
One of those consequences is the historical inference
it justifies, positively identifying the Federal Judiciary as the
principal entity that engineered the fraud now proven
to exist in those two Abrogation Clauses.
Although Rep. Kastenmeier was correct all along,
the legislative history seems to support a conclusion
that his objections were not only isolated, but
they were also ignored entirely.
The Federal Courts have now been caught red-handed
because they have been prosecuting criminal cases
in legislative tribunals that lack criminal jurisdiction
in the first instance.
This conclusion is fully supported by a standing decision
of the U.S. Supreme Court, which held that Rules of Court
may not expand or restrict original jurisdiction previously
conferred by prior Acts of Congress!
Our litigation formally challenged the Abrogation Clause
in the Rules Enabling Act because of its obvious
retroactive intent, violating the ex post facto prohibition
in the U.S. Constitution.
Clearly, this widespread violation runs directly contrary
to the ICCPR's guarantee that all American Court litigants
shall be guaranteed courts of competent jurisdiction.
The U.S. District Courts are NOT courts of competent
jurisdiction to adjudicate cases which are intended
to prosecute suspects on charges of violating
One is thereby motivated to wonder if this shocking finding
has also been a major albeit unspoken factor in the large percentage
of Federal criminal cases which are settled by means
of "Plea Agreements". The widespread practice of extorting
plea agreements is a topic for another day, but it is already
Nevertheless, the question of original jurisdiction is
so fundamental, it can and should be raised as far back
in any given felony case.
As the U.S. Supreme Court has already held, correctly,
jurisdiction is the power to declare the law;
without jurisdiction a Court cannot proceed at all
in any cause.
/s/ Paul Andrew Mitchell, B.A., M.S.
Private Attorney General, Civil RICO: 18 U.S.C. 1964;
Agent of the United States as Qui Tam Relator (4X),
Federal Civil False Claims Act: 31 U.S.C. 3729 et seq.