Professor Philip Hamburger has a major new manuscript, Nondelegation Blues, which includes a response to my article A Critical Assessment of the Originalist Case Against Administrative Regulatory Power. Hamburger’s response makes several points, each of which could be the subject of an interesting dialogue. For the moment, I consider it urgent to respond to one of his points, on which I believe he and I are talking past each other, in a way that I fear may confuse readers.
Some background: My article responds to the argument, by Hamburger and other scholars, that early congressional statutes authorizing administrative rulemaking can be distinguished from regulation today on the ground that the rules they authorized did not directly coerce private persons outside the government (in Hamburger’s terms, that they did not bind the public). I offer the counter-example of the congressional direct tax of 1798, which (a) authorized frontline federal assessors to assign taxable values to individual parcels of real estate and (b) authorized, within each state, a federal board of tax commissioners to divide the state into federal tax districts and to uniformly raise or lower the taxable values of all parcels within any district by any percentage “as shall appear to be just and equitable.” This power of each federal board—to make a “just and equitable” uniform mass revision of all taxable values in any district of its state—was a rulemaking power, as rulemaking has been understood in the modern era. That is, it was a generic determination of many individual legal outcomes. It exactly matches the fact pattern in Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441 (1915), which has long been administrative law’s classic case for defining rulemaking (see, e.g., United States v. Florida East Coast Railway Co., 410 U.S. 224, 244-46 (1973); 1 Hickman & Pierce, Administrative Law Treatise 407-08 (6th ed. 2019); see also my article at pp. 1304-05).
Hamburger writes, at page 88 of his manuscript:
[T]he commissioners’ rules were binding only on themselves and their assessors—that is, only on federal officers, not on the public. The 1798 tax statute specified that the commissioners’ regulations “shall be binding on each commissioner and assessor.” It added that commissioners shall present these rules as “instructions” to assessors “informing them” of their “duties.” So, these rules were at most binding instructions to subordinates, not regulations that bound the public. [footnotes omitted]
The rules to which Hamburger refers in the passage above are not the rules that are the basis for my claim that the direct tax delegated rulemaking power to bind the public. The rules that are the basis for my claim are the district-wide mass revisions of taxable values, directly determinative of landowners’ tax liabilities, that each federal board of commissioners was authorized to make under Section 22 of the Valuation and Enumeration Act of 1798—mass revisions just like the ones in Bi-Metallic that have become the field’s touchstone for rulemaking. See Valuation and Enumeration Act § 22, 1 Stat. 580, 589 (1798) (“the commissioners . . . shall have power, on consideration and examination of the abstracts to be rendered by the assessors, as aforesaid, and of the lists aforesaid, to revise, adjust and vary, the valuations of lands and dwelling-houses in any assessment district, by adding thereto, or deducting therefrom, such a rate per centum, as shall appear to be just and equitable”).
By contrast, the rules to which Hamburger refers in the passage I block-quoted above are those that the boards were authorized to make under Section 8 of the Act, to govern any actions they or the frontline assessors might take to implement the Act. Section 8 said each board could “establish all such regulations, as to them, or a majority of them, shall appear suitable and necessary, for carrying this act into effect; which regulations shall be binding on each commissioner and assessor, in the performance of the duties enjoined by, or under this act; and also to frame instructions for the said assessors, informing them, and each of them, of the duties to be by them respectively performed under this act.” Valuation and Enumeration Act § 8, 1 Stat. 580, 585 (1798), quoted in my article at pp. 1333-34. Hamburger may be correct that rules promulgated under Section 8 were binding on federal officials and not directly on the public; my article does not say otherwise. But the Section 8 rules are not the basis for my claim.
The Section 22 rules are. That is why I devote the bulk of my article to analyzing and contextualizing the boards’ power to make these “just and equitable” mass revisions, arguing at length that the mass revisions were sweeping (Part I, Section C), highly discretionary (Part II), political (Part III), unconstrained by judicial review (Part IV), and accepted as constitutional (Part V). I discuss the various boards’ Section 8 regulations in one passage of Part II (pp. 1372-79), arguing that their respective definitions and methods of valuation were open-ended and variable, in a way that suggests the indeterminacy of the mass-revision task eventually undertaken by the boards under Section 22. And I discuss a controversy over one federal board’s Section 8 regulations in one passage of Part III (pp. 1408-13), because it points up contemporary beliefs about the subjective and political nature of mass valuation, which logically would be applicable to mass revisions under Section 22. That is, I use the Section 8 regulations as indirect evidence for my claim, and I analyze them when relevant in a targeted way. The Section 22 mass revisions are the direct basis for my claim, and I structure the whole article to shed light on them.
Hamburger sets forth other points, some of which do go directly to my claim about the Section 22 mass revisions, and I may respond to them—and to other interesting responses to my article by other scholars—at another time. But this particular point is one I feel the need to address in the near term.
Nicholas R. Parrillo is Townsend Professor of Law at Yale, with a secondary appointment as Professor of History.