« A Response to Andrew Hyman on Section 3 of the Fourteenth Amendment [Updated with a Comment from Andrew Hyman]
Seth Barrett Tillman & Josh Blackman
| Main | Gregory Sisk: Recovering the Tort Remedy for Federal Official Wrongdoing
Michael Ramsey »

01/26/2021

Early Delegations of Federal Powers
John Vlahoplus

I have posted Early Delegations of Federal Powers, forthcoming in The George Washington Law Review Arguendo, on SSRN here.  It expands on the work of Professors Posner, Vermeule, Mortenson and Bagley critiquing historical and theoretical arguments for a nondelegation doctrine (debated in posts here, here and here, among others).  The Article demonstrates that early congressional statutes delegated power to impose federal rights, obligations, and penalties to a broad group of actors including private experts acting alone, private experts acting under judicial or executive oversight, and non-federal authorities in addition to federal executive officials.  Statutory guidance for exercising the delegated powers was nonexistent, aspirational, or limited to general restrictions.  The delegations included areas demanding expertise or flexible decision-making, applied to private rights and obligations, and required the delegate to balance risks against economic costs. 

A 1790 statute, for example, protected the health and safety of sailors on foreign voyages.  It specified minimum requirements for the types, amounts, and storage of food and water for every sailor.  It also provided that each American ship of a certain size and crew

shall be provided with a chest of medicines, put up by some apothecary of known reputation, and accompanied by directions for administering the same; and the said medicines shall be examined by the same or some other apothecary, once at least in every year, and supplied with fresh medicines in the place of such as shall have been used or spoiled.  

Food, water, and medicines have costs, of course.  Congress could have balanced the costs of medicines to shipowners against the risks to sailors of illness or death at sea.  It could have specified minimum required medicines and their proper administration just as it did minimum provisions and their storage.  But Congress did not.  Instead, it delegated to unelected medical experts the power to evaluate risks and benefits and to impose obligations on private American shipowners without providing any guidance on the types of medicines to include or their administration.

Congress enacted these statutes knowing that it could later repeal them while recognizing that repeal might be difficult in practice.  Thomas Jefferson argued in 1789 that the earth belongs to the living, that repeals are generally difficult and impractical, and therefore that all constitutions and statutes should sunset.  Nonetheless the Founders included only one sunset in the Constitution, limiting appropriations in support of armies to two years, the term of membership in the House of Representatives.

The use of experts and of administrative law are well within the Constitution’s constraints on the federal government.  Those who oppose this exercise of federal power may always do so in Congress or through living constitutional arguments.  But they cannot rely on history to assert that the Constitution includes a nondelegation doctrine.