DELEGATION, ADMINISTRATION, AND IMPROVISATION.

• Author: Arlyck, Kevin

INTRODUCTION 244 I. THE NONDELEGATION DEBATE 252 II. DELEGATING THE REMISSION POWER 260 A. Remission and Revenue 262 B. Locating Remission 266 C. Affirming Remission 270 D. Remission and Discretion 274 III. JUSTIFYING DELEGATION 276 A. Nonlegislative Power 277 1. Judicial Power 278 2. Executive Power. 282 B. Permissible Delegation of Legislative Power 286 1. Foreign Affairs 286 2. Benefits 292 3. Unimportance 296 4. Necessity 299 IV. DELEGATION AND IMPROVISATION AT THE FOUNDING 301 A. Delegating to the Executive 302 B. Improvising Administration 306 CONCLUSION 312 INTRODUCTION

Nondelegation originalism is having its moment. For most of the past century, the Supreme Court has refused to impose any meaningful constitutional limit on Congress's ability to delegate rulemaking authority to the executive branch. Yet recent Court opinions suggest that five Justices might be ready to adopt a more stringent view of the nondelegation doctrine, on originalist grounds. Most notably, in Gundy v. United States, (1) Justice Gorsuch argued in dissent that the Court's longstanding approach to nondelegation--which requires only that Congress provide the executive with an "intelligible principle" to guide administrative rulemaking (2)--"has no basis in the original meaning of the Constitution." (3) According to Gorsuch, "the framers" believed that Congress cannot delegate to the executive branch "the power to adopt generally applicable rules of conduct governing future actions by private persons." (4) Given the apparent agreement of four other Justices, (5) Gorsuch's opinion raises the possibility that the Court is prepared to impose significant limits on Congress's ability to delegate authority to administrative agencies. The full implications of such a decision are far from clear, (6) but a reinvigorated nondelegation doctrine could have a significant impact on how the modern administrative state functions. (7)

In light of the stakes, skeptics and supporters of the modern administrative state have recently explored in detail what people in the Founding era thought about Congress's power to delegate legislative authority to the executive. (8) The scholarly debate ranges broadly over a variety of pre-Ratification European and American sources, (9) but some of the sharpest disputes have arisen over the conclusions one can draw from early federal legislation. (10) For good reason: throughout the 1790s (and well into the nineteenth century), Congress passed laws giving the executive branch significant policymaking discretion in a variety of domains--patents, foreign trade, military pensions, land taxation, and the postal system, to name a few. (11) This early legislative output is the best evidence we have of Founding-era views of delegation's constitutionality, as the other traditional sources of the Constitution's original meaning--text, structure, and pre-Ratification sources--are largely inconclusive. (12)

Modern scholars disagree deeply about the conclusions we can draw from Congress's early grants of legislative authority to the executive branch. Delegation's supporters view the Founding-era statutes as powerful evidence that the Constitution originally imposed a weak limit on Congress's power to delegate--and perhaps no limit at all. (13) In response, proponents of a more demanding modern doctrine--whom I call "nondelegationists"--have advanced a variety of overlapping theories to explain and justify this early legislation. (14) They argue that, despite the Constitution's general prohibition on delegation, certain types were originally understood to be permissible: delegations of "nonexclusive" legislative authority shared by the executive, (15) delegations regarding "foreign affairs" (16) or public "benefits," (17) delegations of authority to "fill up the details" on matters of lesser importance, (18) and delegations made out of "necessity." (19)

The historical accuracy of these "exceptional" categories of delegation is deeply important, yet largely unexplored in the current scholarship. (20) Without such exceptions, it is difficult--if not impossible--for nondelegationists to reconcile a number of early congressional delegations with a stringent original understanding of nondelegation principles. (21) Whether the justifications are based on foreign affairs, benefits, lack of importance, or some other category, they are essential to the nondelegationist effort to explain the early Congress's apparent willingness to give significant policymaking discretion to the executive branch.

As this Article shows, it is highly doubtful that the Founding generation thought of delegation and its limits in such categorical terms. (22) This Article offers the first systematic assessment of the historical evidence nondelegationists cite in favor of their preferred taxonomies, and finds it remarkably thin. (23) Simply put, no one at the Founding did more than hint at the existence of particular categories of permissible delegations. If that is correct, then the better explanation for why the early Congress routinely delegated legislative power to the executive branch is that no one thought the Constitution prohibited it from doing so.

The nondelegationists' search for a more restrictive original doctrine also poses a deeper problem: it loses sight of the highly uncertain and improvisational nature of early American state-building. As this Article illustrates, for members of the early Congress, building the administrative capacity needed to fulfill the new national government's critical responsibilities was not a quest to trace out hard constitutional boundaries between the branches. (24) It was a dynamic, improvisational, and only partially successful experiment in governance, in which Congress sought to mobilize the limited resources available to it in order to meet the myriad challenges the nation faced. Whatever abstract limits the Constitution might have imposed on Congress's ability to allocate policymaking authority across the institutions of the nascent federal government, they had little apparent impact when it came to actually legislating.

This Article seeks to recapture the dynamism of early congressional delegation through the lens of the Remission Act of 1790. (25) The Act was the First Congress's most intriguing grant of legislative authority to the executive branch, yet is has largely been overlooked in the nondelegation literature. (26) In it, Congress gave the Secretary of the Treasury a power to "regulat[e] private conduct" that modern nondelegationists would likely deem constitutionally impermissible. (27) Under the Act, Congress delegated to the Secretary the legislature's authority to modify or waive the statutory penalties imposed on individuals for violations of major federal laws governing customs collection and maritime commerce. (28) As long as the Secretary believed that the lawbreaker had acted without "intention of fraud," he could impose as much or as little of the attendant fine or forfeiture as he "deem[ed] reasonable and just." (29) There was no appeal from the Secretary's decision--not to the courts, not to the President, and not to Congress. (30) In short, shortly after the Constitution was ratified, Congress did what Justice Gorsuch (and others) believe is constitutionally forbidden: it delegated to the executive branch Congress's own authority to determine what financial punishments the government would impose on private individuals for violations of the law. (31)

Agreement on how best to structure such a significant grant of authority did not come easily. Remission of penalties was a legislative power exercised by Congress in the first instance. (32) But at Alexander Hamilton's suggestion, Congress resolved to delegate that power elsewhere. Members had deep concerns over the wisdom of concentrating too much power in the hands of a single person, and the legislature considered vesting it in a shifting array of institutional actors--local federal officials, district court judges, a panel of cabinet officers, and even the Justices of the Supreme Court--before settling on the Treasury Secretary. (33) Reluctant to commit to this arrangement, Congress repeatedly reauthorized the Act on a temporary basis, and it was subject to renewed challenge--including on nondelegation grounds--before finally becoming permanent in 1800. (34)

As contested as the Act was, members of Congress did not think that the Constitution had much to say about it. To the contrary, they largely debated the Act on the basis of nonconstitutional values--efficiency, consistency, expertise, neutrality, and capacity--which often cut in different directions. They argued over how best to balance the government's law enforcement priorities against the obligation to treat citizens with justice. In so doing, they apparently felt free to experiment with various institutional arrangements, to come up with solutions to the challenges of national governance that best balanced the competing considerations at play. (35)

As this Article explains, this was a pattern Congress repeated in other areas, making delegations of varying breadth to a range of government officials, across the spectrum of federal administration. In areas as diverse as revenue collection, disaster relief, and military development (among others), Founding-generation Americans displayed tremendous creativity in building a federal government that would be limited in its objects but vigorous in pursuing them. (36)

This "extended improvisation" in governance was not easy, nor was it free from controversy. (37) Disputes over how and where to allocate governmental authority were frequent and contentious. And debaters occasionally advanced nondelegation arguments, rendering it at least plausible that Founding-era constitutional understandings included some theoretical limit on Congress's ability to delegate its authority to the executive branch. (38) But whatever nondelegation...