What Ever Happened: Jet Magazine, Ebony Magazine and Fashion Fair Cosmetics?

The Creation of a Black American Media Empire:

I. Introduction: The Sound of the Vacuum

If you stand on a street corner in Chicago long enough, you learn to listen to the spaces between the sounds. The silence tells you more than the noise. In the early 20th century, the American media landscape was a deafening cacophony of white narratives, white commerce, and white jurisprudence. But if you listened for the heartbeat of Black America in the glossy pages of Life or The Saturday Evening Post, you heard nothing but a vacuum. A suffocating, deliberate silence.

To understand the legal and commercial titan that became the Johnson Publishing Company (JPC), we must first indict the system that necessitated its existence. We are not merely talking about "customary" segregation; we are talking about a rigid, systemic exclusion enforced by contract law, property law, and the brutal unwritten laws of Jim Crow. The "General Market" was a legal fiction designed to exclude Black Americans. Black consumers were viewed as statistically insignificant, a rounding error in the eyes of Madison Avenue.

Mainstream media trafficked in caricatures. When Black folks appeared, they were defendants, servants, or punchlines. The "Black Press," newspapers like the Chicago Defender, did the heavy lifting of advocacy. They were the war drums. But you cannot live on war drums alone. John H. Johnson understood a fundamental truth that eluded the white power structure: Dignity is a market force.

The rise of JPC from a $500 loan secured by furniture to a multi-million dollar empire is a case study in piercing the corporate veil of American racism. By the 1980s, Ebony magazine reached over 40% of the Black American adult population. To put that in perspective, no general market magazine, not Time, not Newsweek, ever held that kind of market penetration over the white population. This brief provides a forensic accounting of that rise, the litigation that defined it, and the bankruptcy that dismantled it.

II. The Genesis: Secured Transactions in the "Black Metropolis"

2.1 The Migration and the Metropolis

John H. Johnson was a child of the Great Migration. Born in Arkansas City in 1918, he moved to Chicago in 1933. Chicago was the "Black Metropolis," a city within a city, segregated by redlining and restrictive covenants, yet teeming with economic vitality. Johnson cut his teeth at the Supreme Life Insurance Company.

Insurance is a game of risk assessment. Johnson’s job was to compile a weekly digest of news about Black Americans for the company president. He realized that if he, an educated man, had to scour dozens of papers to find relevant news, the market was inefficient. In legal terms, there was a failure of consideration in the media marketplace; Black readers were paying for content that did not serve them.

2.2 Negro Digest and the Nature of Collateral

In 1942, Johnson conceived Negro Digest. The idea was sound. The capital was nonexistent. White-owned banks practiced a form of commercial apartheid, denying loans to Black entrepreneurs regardless of creditworthiness.

Johnson turned to the only asset he had: his mother’s furniture. Under the principles of Secured Transactions, he used the furniture as collateral to secure a $500 loan.

Collateral: Property that is pledged as security against a debt; the property subject to a security interest or agricultural lien. Black’s Law Dictionary (11th ed. 2019).

This transaction was the seed of the empire. To bypass skeptical distributors, Johnson engaged in what we might call "constructive fraud" if we were being cynical, or "guerilla marketing" if we are being honest. He used the 20,000 names on Supreme Life’s mailing list to solicit prepaid subscriptions. He gave cash to friends to buy the magazine at newsstands, creating artificial demand to force distributors to carry the title.

III. The Assets: Ebony, Jet, and the Construction of the Plaintiff

3.1 Ebony: The Evidentiary Standard of Success (1945)

Ebony, launched in 1945, was not just a magazine; it was a rebuttal. Printed on glossy paper, it mirrored Life magazine but featured Black judges, scientists, and debutantes. It established a new evidentiary standard for Black humanity. In a court of public opinion that viewed Blackness as a badge of poverty, Ebony presented exculpatory evidence of wealth and class.

3.2 Jet: The Pocket Witness (1951)

Jet, launched in 1951, was the "Negro Bible." Small enough to fit in a pocket, it was the rapid-response unit of the Black press. It covered everything from socialite weddings to lynchings.

IV. Commercial Law: Breaking the Zenith Bar

The most significant piercing of the racial veil occurred in the realm of contract and advertising law. In the 1940s, corporate America operated under the "General Market" doctrine, which assumed Black consumers had no disposable income. This was a lie, and Johnson had the data to prove it.

Johnson targeted Zenith Radio Corporation. He discovered the CEO, Eugene McDonald, was obsessed with polar exploration and idolized Matthew Henson, the Black explorer ignored by history. Johnson used a rare autographed biography of Henson to gain access, a brilliant move of interpersonal equity.

He presented the data: Black consumers were buying Zenith radios despite the company’s refusal to acknowledge them. McDonald, impressed, overruled his marketing department. Zenith became the first major general market advertiser in Ebony. This was the moment the "color line" in American advertising was breached, not by statute, but by the sheer force of capitalism.

V. Fashion Fair: Intellectual Property and the "Ashy" Defense

5.1 The Failure of the Market

The origins of Fashion Fair Cosmetics lie in a failure of the duty of care by major cosmetic houses. Models for the Ebony Fashion Fair struggled to find makeup for melanated skin. They were forced to mix existing shades, a process known as "mixing", to avoid the "ashy" look.

Duty of Care: A fiduciary or quasi-fiduciary duty... to act with the watchfulness, attention, caution, and prudence that a reasonable person in the circumstances would use. Black’s Law Dictionary (11th ed. 2019).

Estée Lauder and Revlon breached this duty to Black consumers, refusing to manufacture dark shades. They claimed the market was de minimis.

5.2 The Trademark Solution

Johnson launched Fashion Fair in 1973. His distribution strategy was a masterclass in leverage. He refused to sell in drugstores. He demanded counter space in high-end department stores like Marshall Field’s. His leverage? The advertising pages of Ebony. If a store wanted to reach the affluent Black consumer, they had to carry Fashion Fair. By 2003, the brand generated over $50 million in annual revenue.

VI. The Litigation Docket: Defending the Narrative

JPC was not just a publisher; it was a litigant. The company fought battles that set precedents in privacy, libel, and the right of publicity.

6.1 Kelly v. Johnson Publishing Co. (1958): The Privacy of the Dead

In Kelly v. Johnson Publishing Co., 160 Cal. App. 2d 718 (1958), JPC faced a suit regarding an article about a deceased boxer, Jack Thompson. Ebony described him as a "dope-sodden derelict." His sisters sued for invasion of privacy.

The Court ruled in favor of JPC. The holding was brutal but legally sound: the right of privacy is a personal right that dies with the individual.

Right of Privacy: The right to be let alone; the right of a person to be free from unwarranted publicity. Black’s Law Dictionary (11th ed. 2019).

This ruling protected the press's ability to speak the truth about the dead, even if that truth was ugly.

6.2 Johnson Publishing Co. v. Davis (1960): The Cost of Hearsay

In Johnson Publishing Co. v. Davis, 271 Ala. 474 (1960), Jet got sloppy. They published a blurb claiming a teacher, Edward Davis, had been charged with sex relations with students. It was hearsay. The Supreme Court of Alabama upheld a libel judgment against JPC.

Libel: A defamatory statement expressed in a fixed medium, esp. writing but also a picture, sign, or electronic broadcast. Black’s Law Dictionary (11th ed. 2019).

The lesson? Being a voice for the community does not exempt you from the rules of evidence.

6.3 Toney v. L'Oreal (2005): The Right of Publicity

In Toney v. L'Oreal USA, Inc., 406 F.3d 905 (7th Cir. 2005), the issue was the exploitation of a Black model's visage. June Toney had modeled for Johnson Products (culturally linked to JPC). When L'Oreal acquired the brand, they kept using her face after her contract expired.

The Seventh Circuit ruled that the Illinois Right of Publicity Act protected Toney. Her "persona" was her property. This was a crucial victory against the commodification of Black bodies by white corporations.

VII. The Emmett Till Photos: The First Amendment as a weapon

There is no legal analysis of JPC without discussing the 1955 issue of Jet that published the photos of Emmett Till.

Mamie Till-Mobley wanted the world to see what white supremacy had done to her son. She issued a mandate. Jet photographer David Jackson executed it. The publication of the mutilated face of a 14-year-old boy was not "obscene" under the law; it was probative.

It provided visual evidence of the crime of lynching to a jury of millions. It shocked the conscience. It is widely cited as the spark for the Civil Rights Movement. In this instance, JPC acted as a vigilante press, doing what the courts refused to do: indict the guilty.

VIII. The Insolvency: Chapter 7 and the Liquidation of History

8.1 The Digital disruption

The internet killed the monopoly. The Root and Black Twitter provided for free what Jet sold for a dollar. JPC failed to pivot.

8.2 The Bankruptcy Filing (2019)

In April 2019, JPC filed for Chapter 7 bankruptcy. Unlike Chapter 11 (reorganization), Chapter 7 is a funeral. It is liquidation.

Chapter 7: A chapter of the Bankruptcy Code providing for the liquidation of a debtor's assets and the distribution of the proceeds to creditors. Black’s Law Dictionary (11th ed. 2019).

The assets were sold off. The headquarters at 820 S. Michigan Avenue, the fortress of Black power, was already gone, sold in 2010 for approx. $8 million.

8.3 The Archive Rescue

The 4 million-image archive was the soul of the company. It risked being auctioned piecemeal. A consortium (Ford, Getty, MacArthur, Mellon) intervened, purchasing it for $30 million to donate to the Smithsonian. This was a massive Charitable Contribution structure that saved history from the auction block.

IX. Conclusion: The Verdict

The Johnson Publishing Company is no longer the monolith it was. The assets are scattered. Ebony and Jet are now owned by the Bridgeman family (acquired for $14 million). Fashion Fair is at Sephora.

But the verdict is clear. John H. Johnson did not just build a business; he built a jurisdiction. He created a space where Blackness was the norm, not the exception. He used the tools of contract, property, and tort law to carve out a sanctuary. The papers are signed, the assets liquidated, but the precedent stands.

Matt Murdock, Esq.

Daley Center, Chicago

THE JOHNSON PUBLISHING CO. THE BEGINNING OF AN EMPIRE

The Legality of the "Straw Man" Acquisition: Johnson Publishing Co. and the Undisclosed Principal Doctrine under the Fair Housing Act

I. Preliminary Statement

The air in my office is stale today. It smells of old paper, cheap coffee, and the lingering ozone of the subway tracks running beneath the foundation. It is the scent of the grind. In the legal profession, practitioners like to pretend that the law is a pristine, intellectual exercise, a game of chess played on marble floors. It is not. It is a street fight in a dark alley where the person with the biggest stick usually wins.

Sometimes, however, the person with the stick is outmaneuvered by the person with the better map.

John H. Johnson’s acquisition of commercial real estate in 1949 Chicago is a masterclass in using the machinery of the law to defeat the spirit of the law, specifically the spirit of segregation. He utilized a Straw Man, a legal proxy, to bypass the racial prejudices that would have otherwise barred his entry into the downtown market.

This Legal Analysis analyzes the legal mechanics of that transaction, the status of the "Undisclosed Principal" doctrine, and how such a maneuver would be adjudicated under the modern Fair Housing Act of 1968. I will dissect the difference between "fraud" and "necessary obfuscation" in the face of systemic housing discrimination.

II. Definitions and Legal Framework

To proceed with rigor, I must define my terms. Words are the only weapons that do not leave bruises, but they can still cut deep.

A. The Straw Man

Black’s Law Dictionary (11th ed. 2019) defines a "straw man" or straw party as a nominal party to a transaction; one who acts as an agent for another for the purpose of taking title to real property and executing whatever documents and instruments the principal may direct respecting the property.

In the street vernacular of Chicago’s politics, a straw man is the guy you send through the door first to see if there is a tripwire. In 1949 Chicago, the tripwire was racism.

B. The Undisclosed Principal

This creates an agency relationship where the agent, the white lawyer, deals with a third party, the seller, who has no knowledge that the agent is acting for a principal, Johnson, let alone who the principal is. Under the Restatement (Third) of Agency § 6.03, when an agent acting with actual authority makes a contract on behalf of an undisclosed principal, the principal is a party to the contract unless excluded by the contract's terms.

III. The Fact Pattern: 1949 Chicago

The venue was Chicago, Illinois, a city segregated not by law (de jure) but by fact (de facto) and contract. The subject property was 1820 South Michigan Avenue, a prime piece of commercial real estate.

The players involved included the Principal, John H. Johnson, who was Black; the Agent, a white attorney whom historical records leave unnamed but whom I will refer to as Mr. X; and the Third Party, the white seller.

Regarding the transaction, Johnson knew the seller would not transfer title to a "Negro." This was not merely a hunch; it was the economic reality of the era. Property values were believed to plummet upon Black occupancy, a myth perpetuated by the Home Owners' Loan Corporation (HOLC) redlining maps.

Johnson hired Mr. X to approach the seller. Mr. X presented himself as the buyer. They negotiated the price. They drafted the contract. The seller believed he was conveying the property to a white attorney for his own use or investment.

On the day of the closing, Mr. X sat at the table. The papers were prepared. The seller signed the deed. It was only after the legal instrument was executed, transferring title to the name of the Trust or the entity controlled by Johnson, that Johnson walked into the room to shake hands. The seller was reportedly furious, realizing he had been "tricked" into integrating his own building. But the deed was done.

IV. Legal Analysis: The 1949 Context

Was this legal in 1949? Yes.

A. Shelley v. Kraemer, 334 U.S. 1 (1948)

Just one year prior, the U.S. Supreme Court ruled in Shelley that state courts could not constitutionally enforce racially restrictive covenants. These were clauses in deeds that said this property shall not be used or occupied by any person not of the Caucasian race.

The Court held that while private parties could voluntarily abide by these covenants, known as private discrimination, the judicial enforcement of them constituted "state action" violating the Equal Protection Clause of the 14th Amendment.

The loophole here was that the seller in Johnson's case was not relying on a covenant; he was relying on his own private right to refuse to sell. In 1949, a private seller could refuse to sell to anyone for any reason, except where specific state statutes might intervene, which was rare.

B. Validity of the Contract

The seller could have argued Fraud in the Inducement. The argument would be that he was induced to sign this contract by the misrepresentation of the buyer's identity.

The counter-argument is that in standard commercial real estate transactions, the identity of the buyer is generally considered immaterial unless the contract involves personal credit or personal skill, like painting a portrait. Money is fungible. The seller received the agreed upon price. The "loss" the seller claimed was the loss of the "right" to discriminate. Courts generally do not view the identity of the buyer as a material term in a cash land transaction unless explicitly asked and lied about. Even then, Johnson’s lawyer likely never said "I am not buying this for a Black man." He simply did not volunteer that he was. Silence is not fraud unless there is a duty to speak. In an arms length transaction, there is no duty to disclose the principal's race.

V. Modern Analysis: The Fair Housing Act

If John H. Johnson tried this today, the legal landscape shifts dramatically.

A. The Fair Housing Act (FHA) (Title VIII of the Civil Rights Act of 1968)

42 U.S.C. § 3604(a) makes it unlawful to refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.

B. Is the "Straw Man" still necessary?

Ideally, no. If a seller refuses to sell to Johnson today because he is Black, Johnson has a direct cause of action under the FHA. He can sue for injunctive relief, forcing the sale, or for damages, both compensatory and punitive.

However, proving discrimination is difficult. Sellers hide behind excuses like "better offers" or claiming the property was "taken off the market." Therefore, "testers," which are essentially modern straw men, are frequently used by civil rights organizations to gather evidence.

C. Is the "Straw Man" tactic legal today?

Consider a hypothetical where a Black celebrity wants to buy a house in a gated community but fears the HOA will find a pretext to deny the application if they see his name. He hires a white lawyer to buy it as a trustee. The seller's perspective might be that they were lied to and wanted to know who their neighbor was.

The law states that the use of an undisclosed principal is still a valid principle of agency law. Unless the contract explicitly forbids assignment or requires the specific personal performance of the buyer, the undisclosed principal can enforce the contract.

The FHA twist is that if the seller attempts to void the contract upon discovering the buyer is Black, the seller effectively admits that race was a material factor in their decision. This is a confession of violating the FHA.

The law creates a paradox: The seller cannot claim they were defrauded by the concealment of a fact, race, that they are legally prohibited from considering. If a seller says, "I would not have sold if I knew he was Black," they are confessing to a federal crime or civil tort to justify voiding a contract. It is a legal suicide pact.

VI. The Ethics of Deception

The Legality of the "Straw Man" Acquisition: Johnson Publishing Co. and the Undisclosed Principal Doctrine under the Fair Housing Act

I. Preliminary Statement

The air in my office is stale today. It smells of old paper, cheap coffee, and the lingering ozone of the subway tracks running beneath the foundation. It is the scent of the grind. In the legal profession, practitioners like to pretend that the law is a pristine, intellectual exercise, a game of chess played on marble floors. It is not. It is a street fight in a dark alley where the person with the biggest stick usually wins.

Sometimes, however, the person with the stick is outmaneuvered by the person with the better map.

John H. Johnson’s acquisition of commercial real estate in 1949 Chicago is a masterclass in using the machinery of the law to defeat the spirit of the law, specifically the spirit of segregation. He utilized a Straw Man, a legal proxy, to bypass the racial prejudices that would have otherwise barred his entry into the downtown market.

This Legal Analysis analyzes the legal mechanics of that transaction, the status of the "Undisclosed Principal" doctrine, and how such a maneuver would be adjudicated under the modern Fair Housing Act of 1968. I will dissect the difference between "fraud" and "necessary obfuscation" in the face of systemic housing discrimination.

II. Definitions and Legal Framework

To proceed with rigor, I must define my terms. Words are the only weapons that do not leave bruises, but they can still cut deep.

A. The Straw Man

Black’s Law Dictionary (11th ed. 2019) defines a "straw man" or straw party as a nominal party to a transaction; one who acts as an agent for another for the purpose of taking title to real property and executing whatever documents and instruments the principal may direct respecting the property.

In the street vernacular of Chicago’s politics, a straw man is the guy you send through the door first to see if there is a tripwire. In 1949 Chicago, the tripwire was racism.

B. The Undisclosed Principal

This creates an agency relationship where the agent, the white lawyer, deals with a third party, the seller, who has no knowledge that the agent is acting for a principal, Johnson, let alone who the principal is. Under the Restatement (Third) of Agency § 6.03, when an agent acting with actual authority makes a contract on behalf of an undisclosed principal, the principal is a party to the contract unless excluded by the contract's terms.

III. The Fact Pattern: 1949 Chicago

The venue was Chicago, Illinois, a city segregated not by law (de jure) but by fact (de facto) and contract. The subject property was 1820 South Michigan Avenue, a prime piece of commercial real estate.

The players involved included the Principal, John H. Johnson, who was Black; the Agent, a white attorney whom historical records leave unnamed but whom I will refer to as Mr. X; and the Third Party, the white seller.

Regarding the transaction, Johnson knew the seller would not transfer title to a "Negro." This was not merely a hunch; it was the economic reality of the era. Property values were believed to plummet upon Black occupancy, a myth perpetuated by the Home Owners' Loan Corporation (HOLC) redlining maps.

Johnson hired Mr. X to approach the seller. Mr. X presented himself as the buyer. They negotiated the price. They drafted the contract. The seller believed he was conveying the property to a white attorney for his own use or investment.

On the day of the closing, Mr. X sat at the table. The papers were prepared. The seller signed the deed. It was only after the legal instrument was executed, transferring title to the name of the Trust or the entity controlled by Johnson, that Johnson walked into the room to shake hands. The seller was reportedly furious, realizing he had been "tricked" into integrating his own building. But the deed was done.

IV. Legal Analysis: The 1949 Context

Was this legal in 1949? Yes.

A. Shelley v. Kraemer, 334 U.S. 1 (1948)

Just one year prior, the U.S. Supreme Court ruled in Shelley that state courts could not constitutionally enforce racially restrictive covenants. These were clauses in deeds that said this property shall not be used or occupied by any person not of the Caucasian race.

The Court held that while private parties could voluntarily abide by these covenants, known as private discrimination, the judicial enforcement of them constituted "state action" violating the Equal Protection Clause of the 14th Amendment.

The loophole here was that the seller in Johnson's case was not relying on a covenant; he was relying on his own private right to refuse to sell. In 1949, a private seller could refuse to sell to anyone for any reason, except where specific state statutes might intervene, which was rare.

B. Validity of the Contract

The seller could have argued Fraud in the Inducement. The argument would be that he was induced to sign this contract by the misrepresentation of the buyer's identity.

The counter-argument is that in standard commercial real estate transactions, the identity of the buyer is generally considered immaterial unless the contract involves personal credit or personal skill, like painting a portrait. Money is fungible. The seller received the agreed upon price. The "loss" the seller claimed was the loss of the "right" to discriminate. Courts generally do not view the identity of the buyer as a material term in a cash land transaction unless explicitly asked and lied about. Even then, Johnson’s lawyer likely never said "I am not buying this for a Black man." He simply did not volunteer that he was. Silence is not fraud unless there is a duty to speak. In an arms length transaction, there is no duty to disclose the principal's race.

V. Modern Analysis: The Fair Housing Act

If John H. Johnson tried this today, the legal landscape shifts dramatically.

A. The Fair Housing Act (FHA) (Title VIII of the Civil Rights Act of 1968)

42 U.S.C. § 3604(a) makes it unlawful to refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.

B. Is the "Straw Man" still necessary?

Ideally, no. If a seller refuses to sell to Johnson today because he is Black, Johnson has a direct cause of action under the FHA. He can sue for injunctive relief, forcing the sale, or for damages, both compensatory and punitive.

However, proving discrimination is difficult. Sellers hide behind excuses like "better offers" or claiming the property was "taken off the market." Therefore, "testers," which are essentially modern straw men, are frequently used by civil rights organizations to gather evidence.

C. Is the "Straw Man" tactic legal today?

Consider a hypothetical where a Black celebrity wants to buy a house in a gated community but fears the HOA will find a pretext to deny the application if they see his name. He hires a white lawyer to buy it as a trustee. The seller's perspective might be that they were lied to and wanted to know who their neighbor was.

The law states that the use of an undisclosed principal is still a valid principle of agency law. Unless the contract explicitly forbids assignment or requires the specific personal performance of the buyer, the undisclosed principal can enforce the contract.

The FHA twist is that if the seller attempts to void the contract upon discovering the buyer is Black, the seller effectively admits that race was a material factor in their decision. This is a confession of violating the FHA.

The law creates a paradox: The seller cannot claim they were defrauded by the concealment of a fact, race, that they are legally prohibited from considering. If a seller says, "I would not have sold if I knew he was Black," they are confessing to a federal crime or civil tort to justify voiding a contract. It is a legal suicide pact.

VI. The Ethics of Deception

There is a concept in the law called "Unclean Hands." It usually bars a plaintiff from seeking equitable relief if they have acted unethically regarding the subject of the lawsuit. Some might argue Johnson had "unclean hands" because he deceived the seller. I reject that premise.

When the system is rigged, when the "law" allows a seller to deny you shelter or commerce based on your bloodline, deception becomes a moral imperative. It is Self-Defense.

Johnson did not lie to steal; he lied to participate. He lied to gain entry to a room that was locked from the inside.

Black’s Law Dictionary does not have a definition for "Hustle," but if it did, it would reference John H. Johnson. He understood that in a blind justice system, sometimes you have to wear a mask to be seen.

VII. Conclusion

The "Straw Man" acquisition of 1820 South Michigan Avenue was a valid exercise of the Undisclosed Principal doctrine. It exploited the tension between contract law, which cares about cash, and social custom, which cared about color.

Today, while the Fair Housing Act provides a sword to strike down discriminatory sellers, the shield of the Straw Man remains a useful tool for privacy and security. But I must not forget that Johnson should not have needed a proxy. The fact that he did is an indictment of the era. The fact that it worked is a testament to his genius.

The rain has stopped. The city is quiet. I have a brief to write for a tenant on the west side.

Sincerely,

Matt Murdock, Esq

When the system is rigged, when the "law" allows a seller to deny you shelter or commerce based on your bloodline, deception becomes a moral imperative. It is Self-Defense.

Black’s Law Dictionary does not have a definition for "Hustle," but if it did, it would reference John H. Johnson. He understood that in a blind justice system, sometimes you have to wear a mask to be seen.

VII. Conclusion

The "Straw Man" acquisition of 1820 South Michigan Avenue was a valid exercise of the Undisclosed Principal doctrine. It exploited the tension between contract law, which cares about cash, and social custom, which cared about color.

Today, while the Fair Housing Act provides a sword to strike down discriminatory sellers, the shield of the Straw Man remains a useful tool for privacy and security. But I must not forget that Johnson should not have needed a proxy. The fact that he did is an indictment of the era. The fact that it worked is a testament to his genius.

The rain has stopped. The city is quiet. I have a brief to write for a tenant on the west side.

Sincerely,

Matt Murdock, Esq.

Newsome v Trump Who's Correct?

States Rights or Military Rule?

By Matt Murdock, Esq

Introduction: The Cotton Club is thick with smoke tonight, the horns of Duke Ellington echoing through velvet air, brass and bass rising in syncopation with the steady hum of law itself. I sit in the corner, cane tapping against the hardwood floor like a gavel, ears tuned to the pulse beneath the music. The Constitution has a rhythm of its own, steady as a bassline. Every case, every ruling, every struggle between state and federal power adds another note, another chord to the score of American federalism. Tonight’s melody carries us from 1827 to 2025, from Martin v. Mott to Newsom v. Trump, a lineage as old as the Republic and as alive as the trumpet’s wail just beyond this page. The legal review that follows is not simply a record of one governor’s dispute with one president. It is the story of a centuries-long duel between federal authority and state sovereignty, fought through the words of justices, the commands of presidents, and the pleas of governors. Gavin Newsom, standing in federal courtrooms against Donald Trump, finds himself not merely a politician of the moment but an inheritor of this lineage. His case is a riff on a theme as old as the Militia Acts and as contemporary as the Tenth Amendment’s stubborn refusal to fade. I write as both lawyer and witness, blind to the page but not to the law’s music. The Cotton Club is my courtroom, its stage my bench, its audience the jury of history. What follows is an exhaustive account of this legal symphony, broken into movements, each case a solo, each statute a motif. At the heart is Newsom v. Trump, the most recent improvisation in the eternal contest over who holds the baton when the nation calls out the troops.

Part I: Historical Foundations of Federalization

The lineage begins with Martin v. Mott, decided in 1827. Jacob Mott, a militia member, refused to report when President James Madison called up troops during the War of 1812. He argued that the President could not decide for himself whether an exigency like invasion or insurrection existed, and that such a determination was open to judicial review. The Supreme Court disagreed. Justice Joseph Story wrote that the President’s judgment in calling out the militia was “conclusive upon all other persons.” In other words, once the President said the conditions justified federalizing state forces, that decision could not be second-guessed by courts or governors. The ruling set the tone for nearly two centuries: in matters of calling forth the militia, the President’s word carried nearly absolute weight. This deference would remain a powerful precedent, cited time and again to defend executive action. But history rarely allows power to remain unchecked. After the Civil War, Congress enacted the Posse Comitatus Act in 1878. The Act forbade the use of the Army, and later the Air Force, in executing domestic laws unless expressly authorized by Congress or the Constitution. By policy, the ban was later extended to the Navy and Marine Corps. The law was born from the people’s fear of military domination after years of federal troops occupying the South during Reconstruction. It sought to draw a sharp line between military and civilian authority, to ensure that law enforcement remained in the hands of sheriffs and police rather than generals. In practice, it meant that unless Congress invoked specific statutes such as the Insurrection Act, the military could not be used as a domestic police force. The Act would become a cornerstone of cases like Newsom v. Trump, where the question turned on whether Marines and Guardsmen were engaged in law enforcement roles that the statute prohibited. Fast forward more than a century to 1990, when the Supreme Court decided Perpich v. Department of Defense. Governor Rudy Perpich of Minnesota challenged the federal government’s authority to send National Guard units overseas for training without his consent. He argued that the Guard was primarily a state force under the control of governors. The Court rejected his claim. Justice John Paul Stevens explained that the National Guard is a dual-status force. In state status, under Title 32, Guard members serve the governor. But when federalized under Title 10, they become indistinguishable from the regular Army. The Court upheld the federal government’s authority, underscoring that once federalized, the Guard belongs to the President alone. This case reinforced presidential supremacy over the Guard while highlighting the perpetual tension between state sovereignty and federal control. Together, Martin v. Mott, the Posse Comitatus Act, and Perpich v. Department of Defense create the first movement in this legal symphony. They establish the outer frame: broad presidential discretion in federalizing militias, a statutory prohibition on military law enforcement, and recognition of the Guard’s dual identity. The Tenth Amendment lingers in the background, not yet given full voice, but waiting to surface in the next movement.

Part II: Modern Federalism and the Rise of Anti-Commandeering

The Cotton Club never sleeps. The trumpet wails like a question from the bench, the bass thumps steady like the heartbeat of the Tenth Amendment. By the time the twentieth century gave way to the twenty-first, the courts had begun to shift the melody. If Martin v. Mott set the tune of deference to presidential authority and Perpich reaffirmed it, the modern Court found its voice in the doctrine of anti-commandeering. The horns grew sharper, the rhythm tighter, and suddenly the states had their own solos to play. The first notes of this shift came in New York v. United States, decided in 1992. The case arose from a federal law designed to address the disposal of radioactive waste. Congress told the states they had two options: either regulate the waste according to federal standards or take ownership of it themselves. New York balked. The Supreme Court, in an opinion by Justice Sandra Day O’Connor, struck down the “take title” provision. The Court held that Congress cannot compel the states to enact or administer a federal regulatory program. In plain language, the federal government cannot force a state legislature to dance to its tune. This was the birth of the modern anti-commandeering doctrine, rooted firmly in the Tenth Amendment. The Court explained that while the federal government may encourage states with incentives or even preempt state laws through valid federal regulation, it may not simply command a state to legislate. New York v. United States was a sharp chord in the federalism symphony, a signal that the Tenth Amendment still carried weight in the constitutional orchestra. Five years later the Court struck another emphatic note in Printz v. United States. The case challenged provisions of the Brady Handgun Violence Prevention Act that required local sheriffs to conduct background checks on firearm purchasers. Sheriffs Jay Printz and Richard Mack objected, arguing that Congress had no authority to force them into service. Justice Antonin Scalia, writing for the Court, agreed. The opinion declared that the federal government may not compel state executive officers to administer federal law. The reasoning was simple but profound: the Constitution established a system of dual sovereignty. The federal government and the states are coequal sovereigns, each accountable to their own citizens. To allow Washington to draft state officials into federal service would collapse that balance. Printz was more than a technical ruling about gun checks. It was a trumpet blast announcing that the Tenth Amendment meant what it said. States retained their own dignity, their own powers, their own voices in the federalist orchestra. The anti-commandeering melody deepened in 2000 with United States v. Morrison. The case involved the Violence Against Women Act, which created a federal civil remedy for victims of gender-motivated violence. Congress argued it had authority under the Commerce Clause and the Fourteenth Amendment. The Court disagreed. In an opinion by Chief Justice William Rehnquist, the Court held that violence against women, however tragic, was not economic activity that substantially affected interstate commerce. Nor was it an area where the Fourteenth Amendment permitted federal intrusion. The Court reaffirmed that criminal law enforcement and policing are at the core of state power. While not framed in the language of anti-commandeering, Morrison reinforced the principle that there are limits to federal authority and that states remain primary guardians of public safety. The case underscored that even when Congress is motivated by the noblest of goals, it cannot rewrite the balance of power between Washington and the states. The doctrine matured further in 2018 with Murphy v. National Collegiate Athletic Association. This case concerned sports betting. A federal statute, the Professional and Amateur Sports Protection Act, prohibited states from authorizing or licensing sports gambling. When New Jersey sought to repeal its own ban on sports betting, the NCAA and professional sports leagues sued to block the repeal. The Supreme Court sided with New Jersey. Justice Samuel Alito wrote that the federal law violated the anti-commandeering principle. It did not merely regulate private actors; it told state legislatures what they could and could not do. That, the Court explained, was unconstitutional. Murphy broadened the anti-commandeering doctrine by making clear that it is not only affirmative commands that are barred. Congress may not forbid a state from repealing its own laws either. In the jazz of federalism, the decision gave states not just the right to refuse to play Washington’s song but the right to silence their own instruments if they chose. Together, these four cases form the second movement of the symphony. New York v. United States gave the doctrine life, Printz v. United States gave it force, United States v. Morrison gave it context in policing, and Murphy v. NCAA gave it breadth. In the Cotton Club, the band swells. The Tenth Amendment is no longer a quiet bassline. It has become a trumpet solo, sharp and insistent, demanding recognition. The stage was set for states like California to take these precedents and wield them as shields against federal overreach. And Gavin Newsom, whether he knew it or not, was preparing to step onto that stage as the next soloist.

Part III: California’s Sanctuary Battles

 The Cotton Club slows into a low swing now, the clarinet winding through smoke and chatter. Federalism is never static; its tempo shifts with every decade, every president, every governor willing to test the limits. By the time Gavin Newsom took the stage as California’s governor in January 2019, the anti-commandeering doctrine was already humming like a saxophone solo through the halls of the Supreme Court. And almost immediately, California found itself in the spotlight, battling the Trump administration over immigration laws that went to the very heart of state sovereignty. The case was United States v. California, litigated first in the Eastern District of California and then in the Ninth Circuit Court of Appeals. The federal government under President Trump sued California over three laws: Assembly Bill 450, Assembly Bill 103, and Senate Bill 54. Each law limited how state officials could cooperate with federal immigration authorities. Senate Bill 54, often called the “sanctuary state law,” prohibited state and local law enforcement from using resources to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes. Assembly Bill 450 restricted employers from voluntarily allowing federal immigration enforcement agents into their workplaces without warrants. Assembly Bill 103 authorized state officials to inspect federal detention facilities holding immigrants. The Department of Justice argued that these laws violated the Supremacy Clause of the Constitution, claiming they obstructed federal immigration enforcement. California defended the laws by invoking the Tenth Amendment’s anti-commandeering doctrine. The state argued that while the federal government may enforce immigration laws itself, it cannot compel the state to assist. Just as the Court in Printz said sheriffs cannot be drafted into federal service, California said its officers cannot be conscripted as immigration agents. In 2019, the Ninth Circuit ruled largely in California’s favor. The court upheld Senate Bill 54, affirming that states may choose not to use their resources to enforce federal immigration law. The decision explained that the anti-commandeering doctrine protects the states’ right to decline to administer federal programs, even when refusal makes enforcement more difficult for federal authorities. The court did strike down one provision of Assembly Bill 103 that it found discriminated against the federal government, but the bulk of California’s sanctuary framework survived. The Supreme Court later denied certiorari, leaving the Ninth Circuit’s ruling intact. The victory in United States v. California was more than a policy win. It was a doctrinal statement: the anti-commandeering rule was alive and powerful in the Ninth Circuit, and California knew how to wield it. In the Cotton Club, the band picked up the tempo again. The Tenth Amendment was no longer a background bassline. It had become the melody itself, carrying California into battle after battle with Washington. For Gavin Newsom, the case set the stage for the fights that would follow. As a new governor, he inherited a state already locked in combat with the Trump administration, and already armed with a federal court opinion affirming California’s right to resist federal demands in the name of sovereignty. When the time came in 2025 to challenge Trump’s federalization of the California National Guard, Newsom’s legal team reached back to United States v. California. The case provided not only precedent but also momentum, showing that California could stand its ground in the Ninth Circuit and win. The Cotton Club crowd leans forward now. The band is tightening, each note sharper than the last. The groundwork has been laid. The stage is set. The next solo will not be about employers or detention inspections. It will be about soldiers in the streets, Humvees at city corners, Marines in MacArthur Park. And the question will be whether the President’s baton can drown out the Governor’s voice in the orchestra of federalism.

Part IV: Newsom v. Trump

The Cotton Club is at full volume now. The drummer leans into the snare, the trumpet shouts its high notes into the rafters, and the crowd shifts in their seats. The melody has reached its crescendo, because here lies the case that ties two centuries of law together: Newsom v. Trump, Case Number 3:25-cv-04870-CRB, in the United States District Court for the Northern District of California.

The story begins in June 2025, when federal immigration raids in Los Angeles sparked widespread protests. Some of those protests turned tense. There was property damage, there were objects thrown at officers, but local police reported they had the situation under control. On June 7, 2025, President Donald Trump issued a memorandum invoking 10 U.S.C. § 12406, ordering more than two thousand California National Guard members into federal service, later expanded to over four thousand. He also authorized the deployment of seven hundred active-duty Marines. None of this was done with Governor Gavin Newsom’s consent.

California’s response was immediate. On June 9, Governor Newsom and the State of California filed a complaint in federal court. The suit named President Trump, Secretary of Defense Pete Hegseth, and the Department of Defense as defendants. The complaint argued that the President’s action was ultra vires, meaning beyond the scope of his legal authority. Section 12406 permits federalization of the Guard only in specific circumstances: invasion, rebellion, or when the President is unable with the regular forces to execute the laws of the United States. The complaint insisted none of those conditions were met. There was no invasion, no rebellion, and no showing that federal civilian forces were incapable of enforcing the law.

The complaint also argued that commandeering the California National Guard without the Governor’s consent violated the Tenth Amendment. Public safety and policing, it said, are core state powers, and diverting thousands of Guardsmen from state duties such as wildfire response usurped California’s sovereignty. The complaint added a claim under the Administrative Procedure Act, asserting that the federalization was arbitrary and unlawful. It sought a declaratory judgment that the orders were illegal, an injunction halting the deployment, and attorneys’ fees.

On June 10, California filed a motion for a temporary restraining order and preliminary injunction. The motion repeated the statutory and constitutional arguments and added that the deployment violated the Posse Comitatus Act. The Act prohibits the military from enforcing civilian laws unless expressly authorized, and here Marines and federalized Guardsmen were being used for law enforcement tasks. The motion stressed irreparable harm: not only the strain on California’s ability to fight fires and natural disasters, but also the escalation of unrest when residents saw soldiers patrolling their streets.

Other states soon joined the fight. On June 11, New York and others filed an amicus brief supporting California, warning that if the President could federalize state Guards at will, state sovereignty itself would be eroded. The same day, the federal government filed its response. It argued that Section 12406 gave the President discretion whenever federal law was obstructed, that the Posse Comitatus Act did not apply because the troops were defending federal property rather than enforcing civilian law, and that the Tenth Amendment claim failed if statutory authority was valid.

Judge Charles R. Breyer moved quickly. On June 12, he granted California’s request for a temporary restraining order, enjoining the deployment and ordering the Guard returned to state control. His opinion emphasized that California was likely to succeed on its claim that Section 12406’s conditions had not been met, and that using soldiers for law enforcement raised serious constitutional and statutory concerns.

But the federal government appealed to the Ninth Circuit Court of Appeals. On June 19, a three-judge panel stayed the TRO. The panel cited Martin v. Mott, noting that the President’s determinations under Section 12406 are entitled to broad deference. It reasoned that evidence of interference with federal immigration enforcement was enough to justify the call-up under subsection three of the statute. The panel also held that the Tenth Amendment does not give governors veto power over presidential action when valid statutory authority exists. For a time, federal control over the Guard was restored.

The case moved into discovery and trial preparation. On August 11 and 12, 2025, Judge Breyer presided over a bench trial on the preliminary injunction. Witnesses testified that Marines and Guardsmen had set up perimeters, directed traffic, and in some cases detained protesters. These roles looked less like protection of federal property and more like civilian law enforcement. Internal documents revealed that military planners had dubbed one deployment “Operation Excalibur,” in which Humvees were used to surround demonstrators in MacArthur Park. Local law enforcement officials testified that they had not requested federal assistance and that they believed the situation was manageable.

On September 2, 2025, Judge Breyer issued his ruling. In a fifty-two-page opinion, he held that the deployment violated the Posse Comitatus Act. The evidence showed that troops were engaged in direct law enforcement activities, precisely what the Act forbids absent express authorization. He emphasized that the statutory triggers of Section 12406 had not been met: there was no invasion, no rebellion, and no showing that regular civilian forces were incapable of enforcing the law. Breyer described Operation Excalibur as “an unlawful intimidation tactic.” He wrote, pointedly, that “the President is not King” and that executive power must remain within the bounds of the law.

The injunction he issued prohibits the use of National Guard and Marines in California for law enforcement tasks. It takes effect on September 12, allowing time for appeal, and applies only within California. The White House criticized the decision as misguided, insisting the deployments were meant only to protect federal property. Governor Newsom hailed it as a victory for state sovereignty and constitutional order.

In the Cotton Club, the band reaches its climax. The ruling ties together every note that has been played across two centuries. Martin v. Mott’s deference meets the modern insistence of Printz and Murphy. The Posse Comitatus Act, born from Reconstruction, reasserts its force. And Gavin Newsom, standing on the federal courthouse steps, becomes the newest soloist in the long jazz of federalism. The audience leans forward, waiting to hear whether the Ninth Circuit, and perhaps the Supreme Court, will let the music resolve or demand another refrain.

Part V: Implications and Conclusion

The Cotton Club softens now. The horns ease back, the drummer brushes his snare, and the upright bass walks a steady line. The climax has passed, but the echoes linger. Judge Breyer’s injunction in Newsom v. Trump is not the end of the music. It is a transition, a modulation, the kind of unresolved chord that hangs in the air and demands an answer from the next movement, in this case, the Ninth Circuit, and perhaps the Supreme Court.

The implications of this case stretch far beyond Los Angeles. They speak to the balance of power between states and the federal government, between governors and presidents, between the Constitution’s text and its interpretation across centuries. At stake is nothing less than the rhythm of American federalism.

First, there is the question of presidential discretion under 10 U.S.C. § 12406. Martin v. Mott gave presidents nearly unchecked authority to decide when conditions warranted calling up the militia. For almost two hundred years, that deference stood as a pillar of executive power. But Judge Breyer’s ruling suggests that in modern times, such authority is not absolute. Courts can and must examine whether the statutory conditions, invasion, rebellion, or inability of regular forces to execute the laws, have truly been met. That is a profound shift. It does not overrule Martin v. Mott, but it narrows its reach, insisting that deference cannot mean abdication.

Second, the ruling breathes new life into the Posse Comitatus Act. For decades, the Act has stood as a warning against military involvement in civilian affairs, yet presidents have often skirted its edges. By finding that Marines and Guardsmen crossed the line into law enforcement when they directed traffic, secured perimeters, and detained protesters, Judge Breyer reaffirmed that the Act has teeth. It is not a relic of Reconstruction but a living statute, capable of restraining executive action in the twenty-first century.

Third, the Tenth Amendment’s bassline grows louder. New York v. United States, Printz v. United States, United States v. Morrison, and Murphy v. NCAA had already established the doctrine of anti-commandeering and the preservation of state sovereignty. United States v. California applied that doctrine in the Ninth Circuit, giving California the confidence to resist federal pressure. Newsom v. Trump extends this lineage into the realm of military federalization, suggesting that even when the Guard is federalized, states retain a constitutional interest in protecting their sovereignty and ensuring their resources are not commandeered unlawfully.

The conclusion is not just legal but political. If the President can federalize a state’s Guard at will, then governors become spectators, their capacity to protect their people subject to federal whim. If, however, courts demand adherence to statutory limits and recognize the Tenth Amendment’s role in safeguarding sovereignty, then governors remain co-equal voices in the federalist symphony.

In the Cotton Club, the music quiets. The audience knows the show is not over. The Ninth Circuit will review Judge Breyer’s injunction, and the Supreme Court may be asked to decide whether Martin v. Mott still controls or whether the anti-commandeering doctrine reshapes the law of federalization. The Court will be asked to reconcile nineteenth-century deference with twenty-first-century federalism. The stakes are immense.

The lesson of Newsom v. Trump is that federalism is jazz, not classical. It improvises, it evolves, it bends the rules while staying true to its rhythm. The President is not a king, the states are not vassals, and the Constitution is not a march but a melody. Gavin Newsom’s case is not the first solo, and it will not be the last. The law will continue to play, each case another note, each ruling another chord, until the song of American federalism reaches its next refrain.

The Cotton Club empties slowly, the last notes fading into the Harlem night. I rest my cane against the bar, knowing the music will play again tomorrow. The Tenth Amendment’s bassline will keep time, steady and enduring, until the next governor, the next president, the next case steps into the spotlight.

Source: Matt Murdock Esq.

Endnotes

• Martin v. Mott, 25 U.S. (12 Wheat.) 19, 32 (1827). In this case the Supreme Court held that the President’s determination of whether an exigency existed to call forth the militia was “conclusive upon all other persons,” establishing a tradition of deference to executive authority in federalizing state forces.

• Posse Comitatus Act, 18 U.S.C. § 1385 (1878). This Act prohibits the use of the Army and Air Force in domestic law enforcement absent express constitutional or congressional authorization, and Department of Defense policy has extended its prohibitions to the Navy and Marine Corps.

• Perpich v. Dep’t of Def., 496 U.S. 334, 352–53 (1990). The Court held that National Guard units may be ordered to federal training without gubernatorial consent, reaffirming that Guard members serve in a dual capacity as both state and federal troops.

• New York v. United States, 505 U.S. 144, 174–77 (1992). The Court struck down a provision requiring states to take title to radioactive waste, holding that Congress cannot compel state legislatures to enact or enforce federal regulatory programs, thus announcing the modern anti-commandeering doctrine.

• Printz v. United States, 521 U.S. 898, 933 (1997). The Court invalidated provisions of the Brady Act requiring local sheriffs to conduct firearm background checks, holding that the federal government cannot compel state executive officials to administer federal laws.

• United States v. Morrison, 529 U.S. 598, 617–18 (2000). The Court struck down a provision of the Violence Against Women Act, ruling that gender-motivated violence was not an economic activity subject to federal regulation under the Commerce Clause and reaffirming the states’ central role in criminal law enforcement.

• Murphy v. Nat’l Collegiate Athletic Ass’n, 584 U.S. 453, 479 (2018). The Court held that the Professional and Amateur Sports Protection Act violated the anti-commandeering rule by prohibiting states from repealing their own sports-betting laws.

• United States v. California, 921 F.3d 865, 891–92 (9th Cir. 2019). The Ninth Circuit upheld California’s sanctuary state law, SB 54, finding that the state’s refusal to use its resources to enforce federal immigration law was permissible under the Tenth Amendment’s anti-commandeering principle.

• Newsom v. Trump, No. 3:25-cv-04870-CRB (N.D. Cal. filed June 9, 2025). Governor Gavin Newsom and the State of California sued President Donald Trump and other federal officials over the federalization of California National Guard troops.

• Order Granting Temporary Restraining Order at 4, Newsom v. Trump, No. 3:25-cv-04870-CRB (N.D. Cal. June 12, 2025). Judge Charles R. Breyer granted California temporary relief, holding that the plaintiffs were likely to succeed on their statutory and constitutional claims.

• Order, Newsom v. Trump, No. 25-3727 (9th Cir. June 19, 2025). The Ninth Circuit stayed the TRO, citing Martin v. Mott and deferring to the President’s judgment under 10 U.S.C. § 12406.

• Opinion and Order, Newsom v. Trump, No. 3:25-cv-04870-CRB (N.D. Cal. Sept. 2, 2025). Judge Breyer issued a fifty-two-page opinion holding that the deployment violated the Posse Comitatus Act because federal troops engaged in direct law enforcement tasks such as crowd control, traffic direction, and perimeter security, and finding that the statutory triggers of 10 U.S.C. § 12406 had not been satisfied.

• 10 U.S.C. § 12406 (2023). This statute authorizes the President to call National Guard units into federal service in cases of invasion, rebellion, or when the President is unable with the regular forces to execute the laws of the United States.

• Insurrection Act, 10 U.S.C. §§ 251–255 (2023). This statute permits the President to use armed forces, including federalized National Guard units, in cases of insurrection, rebellion, or obstruction of the execution of federal law, but with heightened conditions and limits compared to 10 U.S.C. § 12406.

• Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). The Court held that where federal statutes trench on traditional state authority, Congress must make its intent unmistakably clear, a principle applied in interpreting the scope of 10 U.S.C. § 12406 in Newsom v. Trump.

• Massachusetts v. EPA, 549 U.S. 497, 520 (2007). The Court held that states are entitled to “special solicitude” in standing analysis when they assert injuries to their sovereign interests, a principle relevant to California’s claim of harm from the federalization of its Guard.

• Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585–86 (1952). The Court held that the President’s power must stem either from an act of Congress or from the Constitution itself, a principle underscoring the limits of executive authority in Newsom v. Trump.