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).
August 6, 2012 at 2:24 pm
Posted in: Constitutional Law, Uncategorized
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Responses (6)
David O. Stewart - August 6, 2012 at 2:49 pm
I’m not sure the linkage to the Framers, or whether Jackson contended only that they “must have” understood such linkage. But an example in the 1780s was Virginia’s delegation to private companies of the responsibility to improve navigation of the Potomac and James Rivers; Maryland joined in the Potomac venture, which G. Washington led (Madison helped with the legislation). Private firms thus had unfettered power to build canals and locks, divert the rivers’ courses, and remove obstructions — all federal powers over navigable waterways under the Constitution.
Jim Maloney - August 6, 2012 at 6:37 pm
I haven’t yet read Jackson’s book (I hereby offer you $18 for your copy — a “double-your-money opportunity,” if you will), but it seems to me the argument could cut exactly the other way given the Framers familiarity with carte-blanche delegation. That is, it need not follow that “the Framers must have contemplated the Congress could make the same sweeping delegation to an administrative agency.” Disgusted as they were by the many abuses of Parliament (or, if you read the Declaration literally, of King George), they may very well have wanted to design a system in which delegation of powers was not feasible. What would such a system look like? Well, for one thing, it would include separation-of-powers principles, and a “headless fourth branch” would pretty much be anathema. Call me a realist, but I firmly believe we have administrative agencies for pragmatic reasons alone, and not because the Framers ever contemplated such a thing.
Edward Still - August 6, 2012 at 8:59 pm
Abebooks.com has the volume listed at prices starting at $80.22/
Daniel - August 7, 2012 at 10:07 am
That’s a sweet pickup. You never know what you’ll find in D.C. bookstores (Second Story, etc.). I bought Caspar Weinberger’s copy of Willard King’s biography of David Davis a couple summers ago.
Joe - August 7, 2012 at 11:02 am
Alan Dershowitz has a book out about a letter by Jefferson & part of it involved the charms of AD finding it in an antiquarian bookstore in NYC. Charming stuff.
Amazon also has some good used copies — it had one of this book, e.g., if not signed, for a reasonable price a few years back. Bought a few books by William Douglas cheap there too.
TS - August 9, 2012 at 7:48 am
What do you make then of the excepting provision of the Appointments Clause? It seems to be the sole instance in the U.S. Constitution where congressional delegation of power is explicitly contemplated and it is very cabined (delegation of a limited power, appointment of inferior officers, to a limited set of potential recipients, the President alone, the Heads of executive Departments, or the Courts of Law). That would seem to give rise to the implication that delegation was contemplated and authorized only under a (very) limited circumstance.
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