A NOTE FOR FELLOW HISTORY GEEKS

RothLawAppeals

In our most recent post, which addressed the new overtime rules, we had occasion to explain that Congress may constitutionally delegate its legislative powers to the rules-making authority of executive agencies.  That delegation must, however, be limited, and based on specific and intelligible principles.

Justice Oliver Wendell Holmes, Jr. famously wrote that law is not logic.  It is the history of nations.  And a trip though the Supreme Court’s Delegation decisions proves it.  Travel back to the New Deal, and the authority of FDR’s new agencies dominate the docket in that area of law.  Today, in a divided government, agencies from the EPA to the DOL test the limits of their authority, providing frequent cases for the Highest Court.

But the first quarter of the 20th century was preoccupied with a different debate: the level of and authority over tariffs – a precursor, perhaps, to our century’s free-trade debates.  And the seminal decision that opened the door to Congressional delegation was one that approved of the Customs Commissioner adjusting tariff rates.

It may also be of interest to historians that the decision that heralded such a great increase in executive authority was authored by a former president.  William Howard Taft, who by 19828 had become Chief Justice of the United States Supreme Court (the only former president to later serve in the Judiciary), penned the opinion for the Court.