Public Rights and Taxation: A Brief Response to Professor Parrillo

Abstract

A division exists between scholars who claim that Congress made only limited delegations to executive officials in the early Republic, and those who see more extensive delegations. In A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, Professor Nicholas Parrillo claims that congressional delegations under the direct tax of 1798 undercut arguments that early delegations of rulemaking either addressed unimportant issues or were limited to special categories. Nondelegation scholar Professor Ilan Wurman responded to Parrillo in the volume of the Yale Law Journal in which Parrillo’s article appeared, particularly arguing that Congress itself addressed the important issues as to the 1798 tax. This paper instead focuses on Parrillo’s claim that the 1798 tax did not fall within any limited special category for nondelegation purposes. Admittedly, Parrillo’s evidence undermines some generalizations that early rulemaking was not “coercive and domestic.” Taxation, however, falls into the category of public rights, which could include matters that were domestic and coercive, but that nevertheless allowed for a more lenient application of separation of powers strictures.

Keywords: nondelegation, rulemaking, public rights, taxation