Notice & Comment

A Scholarly Error and a Larger Truth, by Philip Hamburger

Can Congress delegate its legislative power? The question has stimulated much recent scholarship, including Professor Nicholas Parrillo’s detailed study of the 1798 federal tax act. According to his article, the statute delegated binding rulemaking power. My recent SSRN draft Nondelegation Blues questions Parrillo’s conclusion. But now in this blog, he suggests that my article misreads his argument.

Just by way of background, the current constitutional debate about delegation often seems to turn on the history. Many of the participants do not identify as originalists but nonetheless have made claims about the Constitution’s original meaning. Much of their evidence comes from early federal practices—from early statutes that authorized executive rulemaking. The problem is that such rulemaking did not involve binding national domestic rules. The early federal practices have therefore seemed poor precedents for contemporary administrative regulation.

So, if Parrillo has really identified an instance in which the Fifth Congress delegated binding domestic rulemaking power, that would be interesting. Not necessarily dispositive—as the First Congress took a very different approach. Nonetheless, it would be worth some attention.

But is his claim true? My Nondelegation Blues argues that Parrillo’s conclusion is wrong on several independent grounds—one being that the commissioners’ rules didn’t bind the public. The role of the tax commissioners was to oversee the assessors, who placed a value on taxable land. Among other things, the commissioners could revise or equalize assessments en masse. And in the course of their various duties, they were to adopt “regulations” for carrying the act into effect. My point in Nondelegation Blues is that these regulations did not live up to Parrillo’s billing:

[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. (Page 89.)

From this, my article concludes that Parrillo found an instance of executive rulemaking that merely bound officers.

Parrillo, however, observes that I misread his argument. In his view, the commissioners’ delegated rulemaking was their power to engage in en masse revisions of assessments. In other words, although the statute expressly authorized the commissioners to make regulations, that was not the salient delegation of rulemaking. Instead, the delegated rulemaking that matters was the power of the commissioners to “revise” or equalize assessments.

In retrospect, I think Parrillo is correct that my draft misread his argument, and I am glad to correct my mistake. But my error wasn’t entirely unreasonable. And a corrected reading of his article doesn’t strengthen his argument.

My misreading arose from my naive assumption that when Parrillo said that there was delegated rulemaking under the 1798 tax statute, he was referring to the statute’s express authorization for the commissioners to make “regulations.” Upon rereading his article, it becomes evident that, on the contrary, he views the commissioners’ revisions of assessments to be the key delegated rulemaking. But this just accentuates the limits of his evidence.

When a statute in one section authorizes commissioners to make “regulations,” and in another section authorizes them to “revise” assessments, does it really make sense to say that the commissioners’ revisions of assessments amounted to delegated rulemaking? Possibly. But not obviously. The statute’s distinction between the authority to make “regulations” and the authority to “revise” suggests that the revisions were not regulations.

Second, the assessment process was not considered legislative. Assessments and their revision had long been viewed as determinations of facts, and so were expected to be exercises of judgment, not will. See Nondelegation Blues at 89. In other words, although not actually a matter of judicial power, assessments were to be done in a judicial rather than a legislative spirit. Id.

Third, the text of the 1798 tax statute reinforces this doctrinal point. According to the act, the commissioners were to adjust assessments “as shall appear to be just and equitable.” 1 Stat. 589. Parrillo’s article tries to preserve its claim about delegated legislative power by saying that the phrase just and equitable referred to a broad open-ended discretion. But this clearly is mistaken. Nondelegation Blues explains:

Although the phrase just and equitable was widely familiar in many contexts as a generic measure of justice, the authorization to officers to act as shall appear to be just and equitable [the statute’s phrase] was a standard measure of the conduct of government officials making judicial-like determinations, including assessments. (Pages 89-90.)

So there is yet another reason to doubt whether the power of revision was a delegated legislative power. Not only doctrinally but also textually, the revisions were expected to be exercises of judgment rather than legislative will.

In sum, Parrillo is correct that I misread his argument. And I regret that. But for several reasons—textual and doctrinal—a correct reading of his article is even less persuasive than my initial reading. And this points to the larger truth. Although my article misreads Parrillo’s, his misreads the statute.

Philip Hamburger is the Maurice & Hilda Friedman Professor of Law at Columbia Law School.

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