« Should Ben Bernanke Be Impeached?
Mike Rappaport
| Main | Justice Ginsburg on the Evolving Constitution
Michael Ramsey
»

08/09/2012

Justice Jackson on Non-Delegation
Michael Ramsey

At Concurring Opinions, Gerard Magliocca: Nondelegation and the Hudson Bay Company.  Professor Magliocca writes that in Justice Jackson's book The Struggle for Judicial Supremacy,

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).

But in the comments Jim Maloney makes what seems to me a fairly devastating counterpoint:

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. ...

I would say that without textual anchors these sorts of speculations about framers' intent usually lead to exactly this sort of impasse.