ARTICLE CONTENTS INTRODUCTION I. THE EMBARGO A. A Statutory History of the Embargo B. The Constitution and Republican Constitutional Principles C. Administration and Its Control 1. Political Control 2. The System of Administrative Control a. Information-Gathering b. Specific Delegations of Authority c. Interpretive Guidelines d. Internal Accountability for Seizures and Forfeitures 3. The Role of Judicial Review a. The Embargo and the Federal Judges b. Juries and Judges in Federal and State Courts D. The Embargo and the Development of Administrative Law II. BUREAUCRATIZING LAND A. Land Policy B. Administration 1. Establishing Uniform Policies a. Statutory Specificity b. Administrative Regulation 2. Adjudicating Private Claims a. The Statutory System b. Claims Adjudication in Practice c. Adjudicatory Process Before the Land Commissioners 3. Administrative Oversight and Enforcement a. Audit and Inspection b. Settling Accounts and Enforcing Payment 4. Congressional Reports and Investigations 5. Judicial Review and the Public Lands C. Public Lands Policy and the Development of Administrative Law CONCLUSION A great irony propels American political development: the search for more direct democracy builds up the bureaucracy. (1)
When George Washington took office as President with John Adams as his Vice President, the United States had two executive officers--them. Twelve years later, Thomas Jefferson inherited a federal administrative establishment that included 3000 civilian employees and a substantial military force, supplemented by a significant number of private contractors. (2)
Federalist administrations and Congresses had been committed to building national capacities that would stitch a fragile union together with the threads of effective administrative governance. They moved forcefully to establish the Departments of War, State, and Treasury, to increase the reach of the postal service, to "nationalize" responsibility for the debts from the Revolutionary War, to establish a national bank and a sound national currency, to institute an effective system of taxation, and to create a national court system. They supported a strong army and navy and extended the preexisting system of publicly owned and managed trading "factories" to regulate trade with Indian tribes.
These state-builders were hardly inattentive to the need to control state power--politically, administratively, and legally. As they built administrative capacity, they also bound it. (3) But when creating a government to exercise the authority established by the new Constitution, the major official actors of the Federalist period did so mindful of the weakness of the national government under the Articles of Confederation and the feeble executive power provided in virtually all the post-Revolutionary state constitutions. (4) Federalists were ideological nationalists whose emphasis on national authority and executive leadership sometimes led their political opponents to brand them as monarchists. Whatever the truth of that claim, the Federalists lost their political mandate in the bitterly contested election of 1800--an election that Jefferson later described as effecting a "revolution in the principles of our government." (5) Convinced that the ascendancy of the Republican Party had saved the Republic, (6) Jefferson and his supporters subscribed to a "Republican" ideology that was anti-Federalist at almost every major point.
Republicans were strict constructionists who viewed the legitimate sphere of the national government as limited almost exclusively to war and foreign affairs. They were fiscally austere. They abhorred the national debt and the national bank that managed it. Republicans not only begrudged the expense of a standing army and navy; they viewed the Army, commanded by the President, as a threat to democracy itself. For them democratic governance resided in Congress, particularly in the House of Representatives, the national body closest to the people. Republicans hoped that the federal government could carry on its limited affairs and conduct its administration so softly and invisibly that citizens would hardly know that it existed. (7) In his first inaugural, Jefferson prayed for "a wise and frugal government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned." (8) In short, Republicanism's general answer to the problem of controlling and structuring administration was to eliminate administrators when it was possible and to restrict administrative discretion when it was not. (9)
The realities of governance would put these principles to a harsh test. (10) The early years of Jefferson's first term were blessed with peace and prosperity, and Republican principles triumphed. Under Jefferson's leadership Congress substantially reduced the military establishment, abolished internal taxes, and made progress toward retiring the national debt. Resistance to new federal programs reinforced the domestic authority of the several states--as did the repeal of the Judiciary Act of 1801, which had expanded the federal judiciary. (11)
But these idyllic circumstances did not last. Two forces militated against a passive national administration. The first was the rapid territorial expansion of the country. Settlers were pushing ever westward into the public domain--national public lands created by state cessions of western land claims to the federal government during the Confederation, and then by the Louisiana Purchase, the acquisition of the Floridas, and the establishment of the Pacific Ocean as the nation's western boundary.
Following the end of the War of 1812, the stream of settlers from the east to the west side of the Alleghenies became a flood that put severe pressures on the American political and administrative systems. The public domain had to be surveyed, sold, and governed--a task that could be accomplished only by the federal government. Republican "small-government" orthodoxy fit awkwardly with an explosive expansion of national territory and population. Indeed, Jefferson viewed his own purchase of Louisiana, which helped to fuel westward expansion, as unauthorized without an amendment to the Constitution. He withdrew his proposal to request an amendment only out of fear that delay would prompt Napoleon to retract his offer of cession. (12) Not all Republicans agreed that the federal government lacked the power to annex foreign territory, (13) but the Louisiana Purchase would be only one of a series of actions from 1801 to 1829 that violated the principles of strict construction of national power to which Republicans were supposedly committed.
Franco-British rivalry also resumed in Jefferson's second term--a competition that threatened both American commerce and American sovereignty. British and French naval vessels seized hundreds of American ships, and the British impressed thousands of American seamen. Jefferson met this challenge by resorting to commercial pressure--a cessation of all foreign trade. The commercial embargo that he substituted for military might ultimately required the use of domestic coercive authority that was more aggressive and intrusive than the Federalists' hated Alien and Sedition Acts. (14) And when war finally came in 1812, it demonstrated that the Republican policy of avoiding the expense and political dangers of a professionalized military establishment had been a paradigmatic triumph of hope over experience.
Following the sobering events of the War of 1812, Republican administrators proposed and Republican Congresses authorized major reorganizations in many federal departments. (15) These reforms were designed to provide precisely that "energy" and system in the national administration that Republican ideology disdained. But with the Federalist Party no longer a threat, strict adherence to Republican principles had become less attractive for many Republicans. They were now relatively comfortable with a national government run by themselves. Even Jefferson, in his second inaugural address, declared that the surplus of federal revenue should "be applied in time of peace to rivers, canals, roads, arts, manufacturers, education, and other great objects within each State," (16) a statement that would have fit easily in the collected works of Alexander Hamilton.
But strict construction remained official Republican dogma. In Jefferson's view, the application of federal monies to domestic activities within the states required a constitutional amendment. Thus framed as "we must do it, but we cannot," the issue of internal improvements vexed Congress and the country throughout much of the Republican period. (17) Other parts of Republican ideology also remained intact, and not just in the "Old Republican" wing of the party. After Jefferson left office, Congress increasingly insisted that it should play the major role both in policymaking and in the structuring and control of administration. Administrators were, if possible, to be kept on short fiscal and statutory leashes. When the practicalities of administration demanded that these principles be abandoned, Congress was determined to oversee administration in a more substantial and systematic way than it had during the Federalist period. (18)
This clash between Republican ideological commitments and the realities of an expanding nation in a dangerous world produced many uneasy compromises. The Federalist administrative system was reformed and extended rather than reduced to insignificance. Congress reintroduced internal taxes when fiscal necessity demanded. It reauthorized the Bank of the United States and, following the debacle of 1812-1814, both strengthened and professionalized the Army and Navy. Survey and sale of the public lands shifted from being a secondary, revenue-raising...