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Kevin Arlyck: Delegation, Administration, and Improvisation
Michael Ramsey

Kevin Arlyck (Georgetown University Law Center) has posted Delegation, Administration, and Improvisation (Notre Dame Law Review, forthcoming) (67 pages) on SSRN.  Here is the abstract:

Nondelegation originalism is having its moment. Recent Supreme Court opinions suggest that a majority of justices may be prepared to impose strict constitutional limits on Congress’s power to delegate policymaking authority to the executive branch. In response, scholars have scoured the historical record for evidence affirming or refuting a more stringent version of nondelegation than current Supreme Court doctrine demands. Though the debate ranges widely, sharp disputes have arisen over whether a series of apparently broad Founding-era delegations defeat originalist arguments in favor of a more stringent modern doctrine. Proponents—whom I call “nondelegationists”—argue that these historical delegations can all be explained as exceptions to an otherwise-strict constitutional limit.

As this article shows, it is highly doubtful that the Founding generation thought of delegation in such categorical terms. The evidence nondelegationists cite in favor of their preferred classifications—systematically assessed here for the first time—is remarkably thin. More importantly, this article highlights how, for the Founding generation, building the administrative capacity needed to fulfill the national government’s responsibilities was not a quest to trace out hard constitutional boundaries between the branches. It was a dynamic and improvisational experiment in governance, in which Congress sought to mobilize the limited resources available to it in order to meet the myriad challenges the new nation faced.

To recapture early delegation’s dynamism, this article focuses on the Remission Act of 1790. It gave the Secretary of the Treasury broad and unreviewable authority to remit statutory penalties for violations of federal law governing maritime commerce—power a strict nondelegation principle would not have allowed. This arrangement was not the obvious choice, and Congress considered vesting this power in a range of institutional actors before settling on the Secretary. Yet despite deep concerns over the wisdom—and even the constitutionality—of concentrating too much power in the hands of a single executive branch officer, Congress repeatedly affirmed this discretion, and the early Secretaries (including Alexander Hamilton) did not hesitate to use it.

This was a pattern Congress repeated elsewhere, making early delegations of varying breadth across the spectrum of federal administration. This experiment in governance was not easy, nor was it free from controversy. Disputes over how and where to allocate governmental authority were frequent and contentious. But if legislative debates occasionally sounded in a constitutional register, overwhelmingly they turned on the kinds of practical considerations that animated Congress’s deliberations over the Remission Act. When it came to designing a workable administrative system for the new federal government, delegation’s boundaries were apparently quite expansive.

SOMEWHAT RELATED: I missed this earlier article by Professor Arlyck, The Courts and Foreign Affairs at the Founding (2017 BYU L. Rev. 1 (2017)).  Here is the abstract: 

When should the courts defer to the executive branch in foreign affairs? This question — which dominates discussion over the proper role for the judiciary in the United States’ relations with the rest of the world — presupposes an inevitable opposition between judicial decisionmaking and executive branch policymaking. On the standard account, the president takes action in foreign affairs, and the courts acquiesce (usually) or resist (occasionally).

But what if the dynamic between the branches in foreign affairs was complementary, rather than oppositional? What if the executive, rather than asserting plenary authority to structure the nation’s foreign relations, sought to delegate to the courts significant responsibility for resolving questions with critical importance for foreign affairs? And what if the judiciary accepted or declined not based on ideas about the scope of presidential authority, but out of consideration for international comity and its own institutional interests?

To explore this idea, this article looks at the Constitution’s first decade, a time when the Washington Administration actively sought to give the federal judiciary significant authority for responding to the nation’s first major diplomatic crisis. Beginning in 1793, French maritime attacks launched from the United States against Great Britain threatened to drag the new nation into an international war it likely could not survive. Convinced of the necessity of remaining neutral, the Washington Administration sought a means of responding to the wartime demands of one side without giving offense to the other.

The answer lay in the courts. Contrary to standard presidentialist accounts of early foreign relations, by delegating to the courts responsibility for resolving disputes over British property captured by French warships operating from the United States, the executive sought to mobilize the institutional resources of a coequal branch of government to manage a controversy it had neither the will nor the means to address. As this article establishes, however, federal judges resisted the administration’s recruitment effort, evincing grave doubts about the propriety, under treaty and the law of nations, of assuming jurisdiction over such cases. Though in many respects judges supported the administration’s goals, in their decisions they made clear that the executive branch’s policy priorities would need to be balanced against the judiciary’s own institutional concerns and interests.

While current scholarship on the relationship between the courts and the president in foreign affairs largely focuses on questions of deference, the Neutrality Crisis tells us a different tale, one in which judicial decisionmaking complements executive branch policymaking, rather than undermines it. Accordingly, the account presented here reminds us that executive primacy and judicial acquiescence are not the only ways to think about executive-judicial relations in foreign affairs. At the same time, judicial skepticism in the 1790s about the wisdom of becoming enmeshed in foreign affairs disputes suggests that judges themselves might not always agree.

This idea of the courts as taking a modest role in foreign affairs in the post-ratification period is consistent with the views I expressed in this article: Courts and Foreign Affairs: 'Their Historic Role' (35 Const. Comm. 173 (2020)).  I should have made use of Professor Arlyck's work in that project.