Grazing, Grimaud, and Gifford Pinchot: How the Forest Service Overcame the Classical Nondelegation Doctrine to Establish Administrative Crimes

Abstract

This article recovers the structure the classical nondelegation doctrine and reconstructs the role that doctrine and other historical circumstances played in the establishment of administrative crimes in United States v. Grimaud in 1911, but its primary focus is exploring what that episode reveals about the process of legal change. It rejects deterministic claims that the nondelegation doctrine has always responded in a simple way to practical concerns. Such an approach cannot effectively explain how difficult it was for the government to win judicial approval of administrative crimes. The course of that decade long campaign is better explained by recognizing how the establishment of administrative crimes was affected by the interaction of the classical nondelegation doctrine with other legal, political, and practical circumstances. Among the most important of those circumstances were the Supreme Court's 1812 decision in United States v. Hudson & Goodwin, the government's limited ability to appeal criminal decisions, the challenges of policing millions of acres of isolated public lands, and the successful efforts of Gifford Pinchot, the nation's first Forester, to build a zealous and talented legal department at the US Forest Service. The paper thus advances an understanding of doctrinal change that emphasizes the interaction of structural constraints – including legal doctrine itself - with more contingent factors, like timing and individual decisions.

Keywords: legal history, nondelegation, administrative crimes, separation of powers, Progressive Era