Nicholas R. Parrillo (Yale Law School) has posted Foreign Affairs, Nondelegation, and Original Meaning: Congress's Delegation of Power to Lay Embargoes in 1794 (University of Pennsylvania Law Review, Volume 172, pp. 1803-1843 (2024)) (41 pages) on SSRN. Here is the abstract:
Originalist proponents of a tougher nondelegation doctrine confront the many broad delegations that Congress enacted in the 1790s by claiming that each fell into some exceptional category to which the original nondelegation doctrine was inapplicable or weakly applicable, one being foreign affairs. There is lively debate on whether the founding generation actually recognized an exception to nondelegation principles for foreign affairs. This Article, commissioned for a symposium on “The Statutory Foreign Affairs Presidency,” intervenes in the debate by examining the Embargo Authorization Act of 1794, which empowered the President to lay an embargo on all ships in U.S. ports (and/or other classes of ships) if “the public safety shall so require,” for the upcoming five-month congressional recess. This was a delegation of remarkable power over the U.S. economy, which at the time depended heavily on maritime transport.
An examination of the Act undermines the idea that there existed a foreign-affairs exception to cover it. Originalist proponents of a tougher nondelegation doctrine claim the doctrine was meant to protect private individual rights of liberty and property, yet Americans in the late 1700s lived in an economy that was more dependent on foreign commerce than it has ever been since, in which a five-month international embargo could be disastrous for private business nationwide. In this context, an “exception” for foreign affairs would be strange, turning economic reality on its head. Furthermore, the Act itself flouted any objective or even workable distinction between the foreign and the domestic. The Act’s unqualified use of the term “embargo” authorized the President to prohibit the departure of all ships, not only those sailing to foreign ports but also to other U.S. ports in the coastwise trade, which was then the main channel of U.S. domestic commerce. And even if the President were to impose an embargo aimed mainly at international maritime trade, preventing evasion of such a restriction required regulation of the coastwise trade—regulation that contemporaries apparently understood the Act to authorize.
This paper has some relationship with my recent paper (with Matthew Waxman) on delegating war powers. We are also skeptical of an originalist case for a "foreign affairs exception" to nondelegation rules.
Mike Rappaport adds: This paper also has some relationship with two of my papers, but the opposite relationship that Mike Ramsey notes. In these two papers, I defend applying a foreign affairs exception to the nondelegation doctrine. See A Two Tiered and Categorical Approach to the Nondelegation Doctrine and The Selective Nondelegation Doctrine and Line Item Veto.
Posted at 6:00 AM