Nondelegation and the Hudson Bay Company

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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6 Responses

  1. David O. Stewart says:

    I’m not sure the linkage to the Framers, or whether Jackson contended only that they “must have” understood such linkage. But an example in the 1780s was Virginia’s delegation to private companies of the responsibility to improve navigation of the Potomac and James Rivers; Maryland joined in the Potomac venture, which G. Washington led (Madison helped with the legislation). Private firms thus had unfettered power to build canals and locks, divert the rivers’ courses, and remove obstructions — all federal powers over navigable waterways under the Constitution.

  2. Jim Maloney says:

    I haven’t yet read Jackson’s book (I hereby offer you $18 for your copy — a “double-your-money opportunity,” if you will), but it seems to me the argument could cut exactly the other way given the Framers familiarity with carte-blanche delegation. That is, it need not follow that “the Framers must have contemplated the Congress could make the same sweeping delegation to an administrative agency.” Disgusted as they were by the many abuses of Parliament (or, if you read the Declaration literally, of King George), they may very well have wanted to design a system in which delegation of powers was not feasible. What would such a system look like? Well, for one thing, it would include separation-of-powers principles, and a “headless fourth branch” would pretty much be anathema. Call me a realist, but I firmly believe we have administrative agencies for pragmatic reasons alone, and not because the Framers ever contemplated such a thing.

  3. Edward Still says: has the volume listed at prices starting at $80.22/

  4. Daniel says:

    That’s a sweet pickup. You never know what you’ll find in D.C. bookstores (Second Story, etc.). I bought Caspar Weinberger’s copy of Willard King’s biography of David Davis a couple summers ago.

  5. Joe says:

    Alan Dershowitz has a book out about a letter by Jefferson & part of it involved the charms of AD finding it in an antiquarian bookstore in NYC. Charming stuff.

    Amazon also has some good used copies — it had one of this book, e.g., if not signed, for a reasonable price a few years back. Bought a few books by William Douglas cheap there too.

  6. TS says:

    What do you make then of the excepting provision of the Appointments Clause? It seems to be the sole instance in the U.S. Constitution where congressional delegation of power is explicitly contemplated and it is very cabined (delegation of a limited power, appointment of inferior officers, to a limited set of potential recipients, the President alone, the Heads of executive Departments, or the Courts of Law). That would seem to give rise to the implication that delegation was contemplated and authorized only under a (very) limited circumstance.