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Article Excerpt
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)
INTRODUCTION
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 function of the Treasury to occupying a position of major political and administrative prominence. Jefferson inherited two land offices that reported directly to the Secretary of the Treasury. John Quincy Adams, the last "Republican" President, bequeathed to Andrew Jackson a General Land Office, thirty-nine local land offices, and a system of administrative land claims commissioners whose adjudicatory output rivaled that of the judiciary. (19)
The land office expansion was merely symptomatic of the growth of national governmental activity with respect to Indian affairs, post offices, and post roads--indeed, anything having to do with the settlement of the West. A population of 5.3 million in 1800 more than doubled, to 12.9 million in 1830. (20) Public civilian employment nearly quadrupled, from slightly fewer than 3000 in 1801 (21) to nearly 11,500 in 1831. (22) Technological innovation was also intruding. The steam engine and the cotton gin were giving a whole new complexion to transportation, manufacturing, agriculture, and--incidentally, but momentously--the question of slavery.
In some sense the history of Republican ideological retreat is an oft-told tale. Garry Wills's biography of James Madison describes his presidency as "carried by events toward a modernity he neither anticipated nor desired." (23) And Wills has suggested that we might agree with the bitter "Old Republican" John Randolph that the Republican Party had by the end of Madison's term won the hearts of the people by losing its soul. (24) Madison's successor, James Monroe, had a vision of the United States as a continental empire that generated a muscular foreign policy and spilled over into an increasingly nationalist domestic policy. (25) And the final "Republican" President, the one-time New England Federalist, John Quincy Adams, proposed a domestic program in his first message to Congress that was so energetic that his cabinet, presciently, urged him not to send it. (26)
But these developments should not be understood to suggest that Republican small-government ideology had little effect on the politics or policies of the Republican era. Republican Congresses extended the Federalists' regulation of merchant seamen's labor contracts (27) to fishermen (28) and even enacted some mild regulation of ocean-going passenger ships. (29) But it balked at proposed regulations to stem the rising death toll from bursting boilers on steamboats, (30) ended the system of Indian trading houses that had existed since the Confederation period, (31) and repealed the late-Federalist legislation regulating bankruptcy. (32) Congress also ended a largely successful experiment with federal promotion of smallpox vaccine distribution on the ground that it was an improper incursion into the police powers of the states. (33)
The election of the one-time Federalist John Quincy Adams might have been thought to signal an end to systematic Republican reticence to flex national muscles. But congressional Republicans almost instantly rebelled at Adams's "national program"; little of his legislative agenda succeeded, and he was swept away in the next election by antipathy to--in Andrew Jackson's words--the "splendor and magnificence of the government," which "must end in consolidation and then in despotism." (34) Given Republican parsimony, one might wonder what Jackson was talking about, but this political rhetoric had power then, as now. (35) Small government remained the ideological preference of the people, however much events pressed presidents (and sometimes Congresses) to abandon the true faith.
Managing enormous, indeed explosive, growth in territory, population, and commerce, while maintaining the idea of a small and frugal national government, put serious strains on the efficacy of administration. Administration was demanded, but Congress was loath to fund it. The insistence on congressional control introduced both inefficiencies and local politics into national administrative organization and functioning. (36) And as federal officialdom expanded numerically and spread across a vast territory, the administrative and legal control mechanisms employed in the Federalist period often proved either inadequate or counterproductive.
This Article examines how administrative structure, organization, and technique were challenged by the most important developments of the Republican period--the threats posed by belligerent and powerful foreign states and the dramatic westward expansion of the United States. I concentrate on only two areas of national policy and administration: the embargo of 1807-1809 and the sale and settlement of the public domain. Many other areas of national administration obviously were also affected by territorial and population growth as well as by the reluctant realization that America could not remain aloof from the fratricidal competition among European sovereigns. The size and organization of the military, the management of Indian affairs, and the organization of the Post Office are chief among them. But an investigation of the embargo's implementation and of the sale of the public domain is sufficient to illustrate how administrative law struggled during the Republican period to structure effective political control of administration, to maintain centralized administrative control of distant and multiplying federal officials, and to accommodate external legal control in the courts. It also illustrates weaknesses in the administrative system and what then passed for "administrative law" that would take many decades to repair.
Indeed, given (1) the lack of systematic procedures for either rulemaking or administrative adjudication, (2) the ambiguous nature of public office in an administration often peopled by part-time officials who were paid by fees and commissions, and (3) the dominance of damage actions against these "officers" as the modality of "judicial review," one might sensibly object to the use of "administrative law" as a descriptor. But in my view this narrower vision of the field allows a focus on differing and malleable techniques to obscure more fundamental and enduring goals. As I have argued elsewhere, administrative law has three generic tasks: to structure the accountability of administration to the political branches of the government, to regulate the internal processes of administrative decision-making, and to provide means for testing the legality of administrative action. (37) The means by which law pursues these goals shift across both time and space. But to confine administrative law's domain by attending to contemporary techniques and preoccupations may lead us to misunderstand the significance of administrative law in prior historical periods, (38) in foreign systems, (39) and perhaps in our own contemporary practice.
Part I explores the administration of the embargo of 1807-1809. This grand experiment had many interesting moments for a student of administrative law. Among others, it featured stunning delegations of discretionary authority both to the President and to lower-level officials, as well as heroic struggles by the President and the Secretary of the Treasury to unify administration. The embargo also generated massive resistance, often through the medium of a "judicial review" conducted in the form of jury trials. The history of the embargo thus has much to teach us about early understandings of the nondelegation doctrine, about the crucial importance of the "internal law" of administration, and about the limits of administrative power in a legal world in which judicial enforcement was the norm, jury trials were standard, and official immunity was nonexistent.
While Part I explores a brief but dramatic episode in the nation's regulatory history, Part II examines a governmental function--the sale of public lands--that dates to the colonial period and that continues today, primarily in the attenuated but voluminous form of mineral leases, timber sales, and grazing rights. And while the discussion of the embargo focuses on presidential power, administrative rulemaking, and judicial review, the analysis of public land sales in the Republican era features large-scale administrative adjudication and the modalities of congressional control of administration. Together these two stories sketch a picture of what "administrative law" was like in a period before that term existed and in which the dominant political actors might well have considered it ideologically suspect.
I. THE EMBARGO
Most administrative lawyers have been taught to believe that the Interstate Commerce Act of 1887 (40) was the first great national experiment in economic regulation. (41) It was not. Eighty years earlier, a Republican President and an overwhelmingly Republican Congress embarked on a much grander experiment--the embargo of 1807-1809. Indeed, the scope of the embargo and the powers that it gave the executive branch over American commerce make the Interstate Commerce Act's attempts at regulating the railroad industry seem almost pathetic by comparison. And while the embargo is generally treated as a dramatic episode in the early political history of the nation, (42) the administrative significance of the embargo's massive attempt at economic regulation is less well known. (43)
While the embargo's legal technique was regulation of commerce, it was motivated by foreign policy concerns. From the Founding of the Republic, the British Navy had harassed American shipping through seizures and through the impressment of American seamen. And Franco-British belligerence often led to French interference with American shipping as well. By 1807, a combination of British Orders in Council and decrees by the Emperor Napoleon had made virtually any U.S. vessel on the high seas fair game for the British or French navies, or for privateers acting under British or French authority. (44)
This systematic interference with American neutral commerce would clearly have justified a declaration of war by the United States. But declaring war against the world's greatest naval power, or the world's greatest land force, or both at once, hardly seemed prudent for the fledgling United States. Indeed, the Jefferson Administration's reductions in the military establishment had made war virtually infeasible. (45) Yet to accept British and French depredations on American commerce was as insufferable as war seemed imprudent. The alternative, promoted jointly by Jefferson and by Madison, his Secretary of State, was an embargo on all transport of goods from U.S. ports to foreign destinations. (46)
The embargo of 1807-1809 was novel in two separate senses. First, it was novel as a matter of foreign policy because the nation had never before experimented with such an extensive form of peaceful coercion. (47) Nonimportation statutes and temporary or limited embargoes respecting a particular nation were relatively common, but Jefferson proposed a complete embargo on all foreign commerce with no fixed term. His purpose was "to keep our seamen and property from capture, and to starve the offending nations." (48) The first purpose, if the embargo could be put into effect, would surely be successful. (49) American maritime assets could not be captured on the high seas if they were all in port.
Starving the offending nations was surely more problematic, but not wholly implausible. British and French colonies in the Caribbean were highly dependent upon American trade for most of the necessities of life, (50) and the dependence of British manufacturers on American cotton and other commodities was significant. (51) There is substantial evidence both that the embargo dramatically curtailed foreign trade and that the negative economic impact on Great Britain was greater than the admittedly harsh effects on American commerce, agriculture, and manufacturing. (52) The embargo was ultimately a political, not an economic, failure. (53)
Second, the embargo was a commercial regulatory experiment of equal or greater novelty. Mercantilist trade regulation by the great European powers had long subjected their commerce to pervasive governmental control. And states and localities in the United States heavily regulated internal commerce for a host of purposes. (54) But mercantilist regulation was designed to promote commerce, not to stop it in its tracks. And commercial regulation under the states' general police power was an exercise of an authority implicitly denied to the national government by its establishment as a government of enumerated powers.
Indeed, preexisting federal regulation of ship-borne commerce simply adopted state inspection and quarantine laws by making compliance with state regulations a requirement for clearing into or out of U.S. ports. (55) And federal "licensing" of vessels was really only a certification requirement that facilitated customs collection (56) or provided a necessary condition for the receipt of federal subsidies. (57) Moreover, unlike the "association" embargoes of the colonial period--which had been carefully tailored to sectional interests, adopted by agreement, and enforced by local persuasion, publicity, and social ostracism (58)--the laying and enforcement of Jefferson's embargo would entail executive implementation authority of enormous reach and coercive force. To stop all commerce with foreign nations was to impair, if not to imperil, the livelihood of most citizens of the United States. (59) Resistance was inevitable. The Jefferson Administration and Congress quickly discovered that effective implementation of a general embargo required draconian administrative authority.
A. A Statutory History of the Embargo
The initial Embargo Act, (60) passed three days before Christmas of 1807, was brief and to the point. No ships or vessels in the ports of the United States were to be cleared for any foreign port save by the explicit direction of the President. The President was given the authority to issue "such instructions to the officers of the revenue, and of the navy and revenue cutters of the United States, as shall appear best adapted for carrying the same into full effect." (61) Registered vessels of the United States were allowed to engage in coastal trade within the United States itself, provided that the owner, master, consignee, or factor of the vessel gave a bond equal to double the value of the vessel and its cargo, guaranteeing that the ship's cargo would be re-landed in some port of the United States, "dangers of the seas excepted." (62)
As we shall see, the provisions for presidential authorization to sail to foreign ports and the exception for dangers of the seas would generate significant administrative and legal complications. Even more troublesome, the initial Embargo Act failed to provide any penalties (other than bond forfeiture) or enforcement mechanisms.
Merchants flocked to customs officials to exchange their foreign registrations for coastal licenses. (63) The likely intent to evade the embargo was obvious. The new year had hardly begun, therefore, before Congress returned to the embargo question. (64) The supplementary legislation made the embargo applicable to vessels exclusively in the coastal trade and to fishing vessels as well. Any violation of the statute subjected the guilty parties to forfeiture of the ship and its cargo, or, if these were unavailable, to a fine equal to double their combined value. In addition, any master or commander of a ship, or any other person who was knowingly involved in a prohibited foreign voyage, would be subject to fines of between $1000 and $20,000. Moreover, owners of ships violating the embargo would thereafter be denied all credit for duties payable to the United States, and masters or commanders of such ships would no longer be able to give any acceptable oath or affirmation before any collector of the customs of the United States. These disabilities would effectively deny the offending parties the ability to pursue their livelihoods. (65) Enforcement could be had in federal court, revenue officers were granted up to one-half the value of forfeited vessels and cargos, and vessel owners or masters were remitted to the administrative system for relief from forfeitures or penalties that were used for relief from customs duties generally. (66)
Two months later, Congress acted again to preempt further techniques of evasion. The second supplementary statute applied the embargo to small, unregistered vessels and also to any exportation carried out on land as well as by sea. (67) This statute also required merchants to document their re-landing of goods at an American port by obtaining a certificate from the collector of customs of that port. In its only ameliorating action, Congress responded to the complaints of merchants with goods stranded abroad by giving the President authority to authorize a voyage solely for the purpose of recovering those goods. (68)
Congress was then close to adjournment. But before it left, it passed two more embargo statutes. The first authorized the President to suspend the operation of the embargo in whole or in part "in the event of such peace or suspension of hostilities between the belligerent powers of Europe, or of such changes in their measures affecting neutral commerce, as may render that of the United States sufficiently safe, in the judgment of the President of the United States." (69)
Should these happy circumstances fail to materialize, the administration was to have yet more authority. In another "supplementary" statute, Congress provided that no ship was to receive clearance to leave any port unless it had been loaded under the direct supervision of the revenue officers. (70) Furthermore, there was to be no clearance from any harbor adjacent to foreign ports without the specific authorization of the President himself. All naval vessels and revenue cutters were authorized to stop and examine any United States ship if there were "reason to suspect [it] to be engaged in any traffic or commerce, or in the transportation of merchandise of either domestic or foreign growth or manufacture, contrary to the provisions of this act." (71)
While naval vessels and revenue cutters needed "reason to suspect" that a violation was in progress, the collectors of customs were empowered "to detain any vessel ostensibly bound with a cargo to some other port of the United States, whenever in their opinions the intention is to violate or evade any of the provisions of the acts laying an embargo." (72) Collectors were to refer such cases to Washington, and the detained vessel could be released only upon a decision by the President. Moreover, collectors were authorized to seize "any unusual deposits" of goods "in any of the ports of the United States" that were "adjacent to territories, colonies or provinces of a foreign nation." (73) Authority to seize or detain vessels on "suspicion," or on an official's "opinion" that the vessel intended to violate the embargo laws, or to seize deposits of goods viewed as "unusual" was, to put it mildly, a remarkable grant of administrative discretion.
Even these extreme provisions proved unavailing. Having returned from its recess, in January 1809, Congress passed its penultimate embargo legislation: the so-called Enforcement Act. (74) Under this statute, all preexisting penalties and forfeitures were applied to anyone aiding and abetting the violation of the embargo. Informers were given a bounty of half of the fines resulting from their information. Ships now could not be loaded without an explicit permit from the collector of the port and were required to be loaded under his supervision. Collectors were to deny a permit if, in their "opinion," there was "an intention to violate the embargo, or whenever they shall have received instructions to that effect by the direction of the President of the United States." (75)
The Enforcement Act went on to specify evidentiary provisions making the government's proof easier when it sought forfeitures or penalties, and the defendant's proof more difficult when it sought to justify going to a foreign port because of capture or distress. Indeed, these latter facts had to be proved by the testimony of every living member of the vessel's crew. (76) Collectors were given authority to seize any goods on land or sea when "there is reason to believe that they are intended for exportation" or "apparently on their way towards the territories of a foreign nation, or the vicinity thereof, or towards a place whence such articles are intended to be exported." (77)
The statute also purported to give collectors virtual immunity from suit for actions designed to prevent violations of the embargo, as long as they were carrying out the statute or any general rules or instructions issued by the President. Anyone who sued a collector and lost would be required to pay the collector treble the cost of the suit. (78) And, in perhaps the most spectacular provision of the statute, Congress gave the President the authority to
employ such part of the land or naval forces or militia of the United States, or of the territories thereof as may be judged necessary ... for the purpose of preventing the illegal departure of any ship or vessel, or of detaining, taking possession of, and keeping in custody any ship or vessel, or of taking into custody and guarding any specie, or articles of domestic growth, produce or manufacture, and also for the purpose of preventing and suppressing any armed or riotous assemblage of persons, resisting the custom-house officers in the exercise of their duties, or in any manner opposing the execution of the laws laying an embargo, or otherwise violating, or assisting and abetting violations of the same. (79)
Having given the President all these powers, they took from him, at his request, the authority to give permission to recover goods stranded in foreign ports. (80)
In combination, the various embargo statutes made virtually everything that moved in commerce in the United States potentially subject to seizure. Collectors of revenue, naval personnel, and the masters of revenue cutters could stop sea and land transports on mere suspicion, or on forming the "opinion," that violation or evasion of the embargo was intended. No ship could be loaded without a permit, and then only under the watchful eye of a federal official. The President could use the full force of the Army, Navy, and militias not just to suppress insurrection, but simply to prevent the violation of any provision of the embargo statutes. Virtually nothing could be loaded or moved in commerce without a permit or a license, often backed by a huge bond. (81) Permission to load or move goods was subject to the apparently unconstrained discretion of the permitting authorities.
This was regulatory authority of astonishing breadth and administrative discretion of breathtaking scope. That such an administrative system would raise constitutional doubts and provoke stiff resistance was inevitable. Indeed, Congress's willingness to go to these extremes suggests the level of resistance that the embargo and its implementation encountered. Resistance triumphed. Only three months after adopting its most draconian enforcement provision, Congress repealed the embargo and substituted a much milder regime of nonimportation. (82)
B. The Constitution and Republican Constitutional Principles
There is little doubt that the embargo, as established by statute and carried out in practice, violated virtually every constitutional principle that the Jeffersonian Republicans held dear. Limited government was clearly out the window, as was congressional control of administrative authority. Administrative powers of coercion were to be applied on the basis of suspicion or opinion, backed by the Army, the Navy, or presidentially controlled militias. Henry Adams concluded:
[T]he embargo and the Louisiana purchase taken together were more destructive to the theory and practice of a Virginia republic than any foreign war was likely to be. Personal liberties and rights of property were more directly curtailed in the United States by embargo than in Great Britain by centuries of almost continuous foreign war ... [E]ven the Secretary of the Treasury and the President admitted that it required the exercise of most arbitrary, odious, and dangerous powers. (83)
Were federal statutes providing this level of administrative regulatory authority constitutional? From the perspective of 1808, the question was far from fanciful. A broad swath of contemporary opinion urged the embargo's invalidity. The proponents of unconstitutionality were, to be sure, strange political bedfellows. They included radical Republicans, who clung to a compact or confederation theory of the Constitution, and New England Federalists, many of whom were willing to jettison their traditional beliefs in both broad national power and the need for an energetic executive in the service of protecting New England's commerce from the embargo's devastating effects. (84) Charles Warren, in his classic history of the Supreme Court, stated that "[t]he Embargo Law was a far more extreme exercise of Congressional power than either Republicans or any one else had believed possible under the Constitution." (85) And Justice Joseph Story, who argued in favor of the constitutionality of the embargo in the only case that straightforwardly addressed the issue, later wrote that he considered the embargo "a measure[] which went to the utmost limit of constructive power under the Constitution." (86)
Others have seen the constitutional concerns as less serious. After canvassing the constitutional arguments that were put forward in Congress when the various embargo statutes were being discussed, David Currie has concluded that the arguments in favor of the embargo's validity were "overpowering by modern standards" and that they "had been consistently accepted since the Government was first established." (87)
Currie's position echoes Judge John Davis's opinion in United States v. The William. (88) Davis, a staunch Federalist, found the embargo constitutional not only as a regulation of commerce, but also as an exercise of the war powers, as a preparation for war under the Necessary and Proper Clause, and as appropriate to carrying out the general purposes of the Constitution and to protecting the inherent sovereignty of the nation. (89)
The opinion in The William, which reads as if written by Chief Justice John Marshall in one of his more unguarded moments, upheld Federalist principles of judicial supremacy but dashed the New England Federalists' hopes for quick relief from the embargo. For Republicans, Davis's ruling was both a blessing and an embarrassment. Their embargo had been upheld, but viewing the court's pronouncement as conclusive violated deeply held Republican principles. Jefferson never accepted the idea that judicial review settled constitutional or statutory issues with finality, and Republican attacks on the authority and independence of the federal judiciary were a hallmark of his presidency. (90) The decision in The William thus produced the odd spectacle of Republicans clasping a Federalist judge's decision to their bosoms, while Federalist opponents of the embargo continued to deny the embargo's constitutionality. (91)
C. Administration and Its Control
The implementation of the embargo, like any system of administrative implementation under the American Constitution, was subject, at least in theory, to three forms of control: political control by elected officials; administrative control through hierarchal supervision; and legal control through judicial review. All three are of considerable interest. Resistance, while far from universal, was widespread. Hence, the enforcement powers that Congress so freely granted had to be employed with vigor. Could compliance be effected while maintaining political, bureaucratic, and legal oversight that was consistent with conventional understandings of democracy and the rule of law?
1. Political Control
The Constitution divides political control of administration between the President and Congress, but the embargo almost represented what we might currently call pure "presidentialism." (92) Congress retained political control neither through statutory specificity nor through political oversight. The embargo statutes, as we have seen, provided remarkably broad grants of enforcement discretion both to the President and to enforcement personnel. The President was granted almost unlimited authority to decide specific cases, to direct the activities of lower-level personnel, and to suspend the operation of the embargo (with such exceptions as he deemed prudent). And during the short period that the embargo was in effect, Congress devoted itself primarily to enhancing the administrative powers of the President and others, (93) not to investigating or overseeing their practices. This was clearly contrary to basic Republican principles and to congressional practice in most areas of administrative action during the Republican period.
Broad delegation of authority reduced political accountability to Congress but enhanced accountability to the President. Political control thus operated more in accordance with Federalist than with Republican principles. President Jefferson proposed the embargo policy and took full responsibility for it. He was active in the development of subsidiary policies for implementing the scheme, and supplementary legislation to strengthen the embargo was consistently enacted at his request When the embargo ultimately became intolerable to the people, they laid the blame firmly at Jefferson's door. (94)
At the same time, Congress may be said to have failed in its critical constitutional role of providing a check on executive power. Leonard Levy has had a notoriously gloomy view of Jefferson as a civil libertarian, but it is hard to argue with his statement that
[o]n a prolonged, widespread, and systematic basis, in some places lasting nearly a year, the armed forces harried and beleaguered the citizenry. Never before or since did American history exhibit such a spectacle of derangement of normal values and perspectives ... ... This was the only time in American history that the President was empowered to use the army for routine or day-to-day execution of the laws. (95)
Moreover, Congress gave this extraordinary power to a President who was far from squeamish in pursuing his objectives under the embargo legislation. In their studies of the embargo, Leonard White and Burton Spivak have pointed out numerous instances in which Secretary of the Treasury Albert Gallatin's sounder judgment softened Jefferson's more aggressive tendencies. (96) Jefferson was prepared, for example, to countenance guilt by association, urging that anyone from a town that was "tainted with a general spirit of disobedience" be debarred from any permit to carry on commerce unless the applicant demonstrated that he had never said or done anything himself in support of resistance to the embargo. (97) He requested that prosecutors allow him to judge personally whether the death penalty should be sought for convicted violators of the embargo's prohibitions. He believed that there would be too many to be punished with death and he wanted to decide who should be marked as examples and who should simply suffer long imprisonment. (98) Wills, perhaps, has gone too far in concluding that "Jefferson had set up a state terrorism that made the Alien and Sedition prosecutions under Adams look minor by comparison." (99)
But Wills has not gone much too far with respect to what Jefferson was prepared to do. The crucial fact of the matter, of course, is that Jefferson was not permitted to do everything that he was prepared to do. As we shall soon see, the courts put some significant limits on the administration of the embargo. More importantly, for current purposes, Congress did not give the President quite all the authority that he wanted. While Congress was willing to give the President or the enforcement officers authority to seize provisions that were "unusual" when delivered to places near the border with Canada or Spanish Florida, Jefferson wanted authority to make such seizures anywhere in the United States. That particular request was never made to Congress because Gallatin assured Jefferson that it "could not pass." (100) And Congress balked when Gallatin proposed that all civil suits against collectors should be tried only in federal court, that a Treasury Department ruling that a seizure was "reasonable" should protect collectors from damages, and that the President should have authority to use state militias for enforcement without authorization from the governors who were the militia's commanders. (101)
Even so, it was often suggested in Congress that the embargo legislation, particularly the President's power to suspend it, was an unconstitutional delegation of legislative authority to the executive branch. (102) That argument never prevailed, but it surely had some merit, for the suspension power was not just a power to suspend upon the finding of certain facts, but a power to suspend with such "exceptions" as the President thought prudent. This was very close to an authority to rewrite the legislation. This nondelegation argument, of course, had the weakness of all such claims. What Congress gave it could also take away. The suspension power itself was only available when Congress was not in session, and it became inoperative under the statute twenty days after Congress had returned to Washington. And although Jefferson would have pressed on with the embargo indefinitely, and Madison might have followed suit, when enforcement of the embargo became too unpopular, Congress repealed the President's authority.
2. The System of Administrative Control
The embargo legislation obviously required thousands of individual decisions by customs collectors, naval officers, and U.S. Attorneys in the various federal districts. In addition, the statutes seemed to give the President a personal responsibility for granting permits and reviewing seizures. How were all of these decisions to be made in an effective, orderly, and consistent fashion? Revenue officers, naval officers, and U.S. Attorneys in the field were subject to radically different conditions in differing parts of the country. And every case was certain to offer some unique aspects based on its peculiar facts. Moreover, state personnel--governors, legislatures, and militia--also took some part in the enforcement of the embargo. What sort of administrative system could unify the actions of all these disparate and dispersed actors?
The first problem was what to do about the discretion that Congress had vested in the President himself. The initial Embargo Act prohibited any vessel from leaving for a foreign port unless "under the immediate direction of the President of the United States." (103) Merchants read this provision as allowing the President to dispense exemptions at will, and applications poured in from every quarter. The virtual impossibility of sorting legitimate requests from evasion schemes drove Jefferson and Gallatin toward a highly restrictive interpretation of the statute. Because an unrestrained power to exempt vessels from the embargo would have defeated its purposes, Jefferson decided that Congress must have meant that he was to provide exceptions only when a voyage by a private vessel was necessary to carry on "public" (apparently meaning "governmental") business. Gallatin duly put a notice to this effect in various newspapers. (104)
Even with this restrictive interpretation, the President's...
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