Nondelegation and the Hudson Bay Company
posted by Gerard Magliocca
I was rereading Justice Jackson’s The Struggle for Judicial Supremacy the other day. My most prized possession is a first edition of the book autographed by the man himself, which I bought years ago at a DC bookshop for $9. (An “Antiques Roadshow” moment, if you will.)
Anyway, in his discussion of the Supreme Court’s non-delegation cases (e.g., Schechter Poultry), Jackson makes a point that I hadn’t thought of before. He explained that the Framers were quite familiar with the concept of a legislature giving a blank check to a private firm to carry out policy, because Parliament did that with respect to the Hudson Bay Company and the East India Company. These monopolies were granted the exclusive right to carry on trade, regulation, etc with respect to entire regions without any oversight short of outright repeal or (the British form of) impeachment. Thus, Jackson’s argument goes, the Framers must have contemplated the Congress could make the same sweeping delegation to an administrative agency. (Granted, you could distinguish delegations to a private firm from those an executive agency, but I suppose that depends on the role that the Crown played in the great British monopolies).