Nicholas Parrillo wrote an article last year that challenged the traditional originalist narrative about the nondelegation doctrine. It was entitled “A Critical Assessment Of the Originalist Case Against Administrative Regulatory Power” and included new evidence from the Federal Tax on Private Real Estate (1790s). In this article (which I noted here), Professor Parrillo discussed how early Congresses delegated power to federal boards of tax commissioners in each state to, among other things, revise tax assessments across-the-board, and argued this was a clear example of the delegation of broad, rule-making power that had a coercive effect on private citizens domestically. This paper represents a recent burst in scholarship that examines whether nondelegation doctrine is authentic originalist.
In a new paper posted on SSRN, “Nondelegation Blues,” Professor Philip Hamburger responds to Parrillo (and other critics of the conventional originalist narrative) and argues that “fundamental principles, drafting assumptions, and text were all aligned in barring transfers of power among the branches of government.”
This is a guest post by the Yale Journal on Regulation‘s “Notice & Comment” blog, Parrillo takes issue with one aspect of Hamburger’s critique (though noting he would also contest others). He suggests Hamburger may have missed the essence of his argument as well as its importance in the ongoing debate about nondelegation. Parrillo focuses on Hamburger’s paper and writes:
Hamburger’s passage does not refer to the same rules I claim the direct tax delegated power of rulemaking powers to bind me. 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. . . On consideration and examination, of both the abstracts to the assessors, as well as of the lists, shall have the power to modify, alter, and vary valuations of land and dwelling-houses within any assessment district. This can be done by adding to or subtracting from such a percentage as is just and fair.”
Hamburger, however, refers to the regulations that boards are authorized to create under Section 8 to guide any action they, or frontline assessors, might take in order to enforce the Act. Each board can “establish any such regulations as they, or a plurality of them shall seem suitable and necessary for carrying out this act; these regulations shall be binding upon each commissioner or assessor in the performance the duties enjoined or under the act; and to also frame instructions for said assessors informing them and each other of the respective duties under the act.” Valuation and Enumeration Act § 8, 1 Stat. 580, 585 (1798), cited in my article at pages. 1333-34. Hamburger might be right that Section 8 rules were binding on federal officials, but not the general public. My article doesn’t contradict Hamburger. My claim is not based on the Section 8 regulations.
Section 22 is. The bulk of this article is devoted to contextualizing and analysing the power of boards to make mass revisions “just, equitable”, arguing that these mass revisions were broad (Part 1, Section C), extremely discretionary (Part II, Part III), non-constrained by the judicial review process (Part IV), and constitutionally acceptable (Part V). One paragraph of Part II contains a discussion on the Section 8 regulations by various boards. (pp. 1372–79), I argue that the respective valuation methods and definitions of each board were flexible and open-ended, which suggests that the Boards’ mass-revision tasks under Section 22 are not yet known. A controversy over Section 8 regulations by a federal board is discussed in Part III (pp. It is 1408-13, because it highlights contemporary beliefs regarding the subjective and politically-motivated nature of mass value. This belief would logically be applicable for mass revisions according to Section 22. So, the Section 8 regulations are used as indirect evidence in my claim. When relevant, I focus on their analysis. They are my direct evidence, so I arrange the entire article to reflect on them.
In a subsequent post on the “Notice & Comment” blog, Hamburger responds to Parrillo, conceding that he misread portions of Parrillo’s argument, but arguing that this does not undermine his overall claims about delegation under the Constitution. Hamburger writes:
Retrospectively, Parrillo seems to be correct in stating that I misunderstood his argument. I regret this error and am happy to rectify it. My error was not entirely unwarranted. His argument won’t be strengthened if he reads it correctly.
It was because I assumed that Parrillo meant that the 1798 tax statute allowed for delegated rulesmaking. He was actually referring to that statute’s explicit authorization of the commissioners making “regulations.” It becomes clear that Parrillo views commissioners’ revising of assessments as the main delegated ruling mechanism. This only accentuates his limitations.
If a statute allows commissioners to make “regulations” but another authorizes them “to revise assessments,” does that make it logical to conclude that commissioners’ revisions to assessments amount to delegated rulesmaking? Possibly. However, it is not obvious. However, the distinction made by the statute between “regulations” authority and “revisions authority suggests that revisions are not regulations.
Second, assessment was not considered legal. Since long, assessments and revisions were regarded as facts-based decisions. They are therefore expected to exercise judgment and not be legally binding. Check out Nondelegation Blues at 89. Also, this meant that assessments would be performed in a judicial and not legislative manner, though they are not an issue of judicial authority. Id.
The third point, as stated in the 1798 tax statute, is strengthened by its text. The act stated that the commissioners had to make adjustments to assessments in a way that appeared just and fair. 1 Stat. 589. Parrillo’s article attempts to maintain its claim regarding delegated legislative authority by stating that this phrase Just and fair referred to a broad open-ended discretion. This is clearly incorrect. Nondelegation Blues explains:
The phrase Just and fair was widely familiar in many contexts as a generic measure of justice, the authorization to officers to act It shall seem just and fair [the statute’s phrase]This was an indicator of how government officials made judicial-like decisions, such as assessments. (Pages 89-90.)
Another reason to wonder if the power of revising was delegated as a legislative power is also evident. Revisions could be interpreted both doctrinally and textually as decisions to exercise judgment, rather than legislative will.
Hamburger concluded that, even though my article misstamp Parrillo, his misstamps the statute.
Both papers contain a lot of information that is worth taking in.