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Thursday, December 24, 2020

Arguments Against the Non-Delegation Doctrine

This is my final post in the series about Robert Jackson's brief in Currin v. Wallace. Jackson argued there that (1) some congressional delegations to the President might be unconstitutional;(2) Congress could not alienate its power; and (3) congressional delegations to executive agencies or independent boards are always constitutional.

Why did Jackson think that delegations to agencies were fine? He made several arguments. One was that the text did not expressly limit delegations except in the Tenth Amendment. (Jackson did suggest, though, that appropriations could not be delegated due to the requirement that no money could be drawn from the Treasury without an appropriation by law.) He also invoked a structural argument:

The executive power which, it has always been assumed, can be delegated, and would be utterly impotent if it could not be delegated, is vested in the President by the same words that are used to vest the legislative power in the Congress. There is no reason to imply a limitation in the language of one section that is not to be implied in the language of the other.

Finally, Jackson asserted that the Framers were well-aware of broad delegations of power by Parliament but chose not to limit delegations of power by Congress:

This silence of the Constitution on the subject of delegation has added significance when we consider that the constitutional convention was familiar with the extravagant delegation of governmental power which was in vogue in that day. Not only were the powers of government parceled out to public bodies, but all of the powers of government were actually alienated to trading corporations. There is no better example than the Hudson's Bay Company.

The Hudson's Bay Company was chartered by Charles II in 1670. Prince Rupert and 17 other noblemen and gentlemen were incorporated and granted “the whole and entire trade and traffic” to and from the Hudson's Bay country. The complete lordship and entire legislative, judicial, and executive power was given to the Company. This governmental power was held and exercised until November 19, 1869, when all its rights of government were returned to the public authorities by a deed of surrender in which the consideration was not merely nominal.

* * * and that the said Governor and Company shall have liberty, full power and authority to appoint and establish Governors and all other officers to govern them, and that the Governor and his Council of the several and respective places where the said Company shall have plantations, forts, factories, colonies or places of trade within any of the countries, lands, or territories hereby granted, may have power to judge all persons belonging to the said Governor and Company, or that shall live under them, in all causes, whether civil or criminal, according to the laws of the kingdom, and to execute justice accordingly.”

 Virginia itself was settled under charters granted to “the London Company” and to the     “Plymouth Company” in 1606. The London Company in 1607 sent its first colonists to the James River.

Jackson also cited many colonial and state laws enacted in the 18th century that broadly delegated, before wrapping up by citing M'Culloch v. Maryland.

Anyway, I hope to write all of this up and get a draft paper out by the summer. 

Posted by Gerard Magliocca on December 24, 2020 at 02:52 PM | Permalink


Its was really a great book.

Posted by: I Blogs Hub | Dec 29, 2020 3:19:51 AM

This is the big problem with the historiography of the separation of powers. The phrase and (more or less) idea were invented by Montesquieu in the late 1700s. In other words, the separation of powers principle has not existed eternally.

Therefore as we move back in time, the separation of power analysis finds that governmental arrangements do not meet it's standard. Americans are amazed. Because they pretty much cannot conceive of a time when the separation of powers ideology did not exist. It is simply too axiomatic in American constitutional thought.

There is a historiographical danger of judging the past with anachronistic legal ideas that did not exist in those times. E.g., insisting that Julius Caesar violated Romans' human rights by failing to recognise their right to universal health care.

If we think about the separation of powers as an idea that developed historically, the mystery vanishes. E.g., Lordship involves superintendence of the courts.

Posted by: English lawyer | Dec 28, 2020 3:33:15 PM

Here you go. It is really fascinating.


Posted by: Marty Lederman | Dec 25, 2020 3:54:40 PM

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