PREFACE This treatise is an expansion of a dissertation submitted in 1923 to the Johns Hopkins University in partial fulfillment of the requirements for the Ph. D. degree. It was originally undertaken at the suggestion of Professor Lindsay Rogers, now of Columbia University, and pursued first at the University of Virginia, under his guidance, and later in Baltimore under the supervision of Professor W. W. Willoughby. To them and to President Goodnow, his three teachers who have most influenced his conception of law and politics, and most contributed to his stock of knowledge, the present writer is indebted in ways that are not indicated in the footnotes. Acknowledgments are also due to Professor Frankfurter, of the Harvard Law School, some meetings of whose graduate seminar in administrative law the writer attended, in 1921-1922, with great profit. Professor Frankfurter discussed at considerable length the problem dealt with in chapter VI. The author desires to take this opportunity to thank Professor Jesse S. Reeves for several very fruitful ideas. It is only fair to state, however, that for errors of fact and of judgment entire responsibility rests with the author. ANN ARBOR, MICHIGAN, May 25, 1924. J. H. CONTENTS Preface.... PART I. JURISTIC ANALYSIS. Chapter I. Introduction.... Chapter II. Analysis of the Governmental Process... Chapter III. The Ordinance: Distinctions and PART II. CONSTITUTIONAL PRACTICE. Chapter IV. Delegated Ordinance Making in Constitutional Practice..... PAGE vii 17 24 44 69 PART III. CONSTITUTIONAL CONSTRUCTION. Chapter V. The Constitution and the Ordin- Chapter VI. The Constitutional Basis and ance Making Powers of the Chapter VII. Other Constitutional Aspects of the Delegated Ordinance Mak ing Powers of the President... Chapter VIII. The Relation of the President to of Heads of Departments and 120 160 185 Chapter IX. Constitutional Aspects of the ing Powers of the President... PART IV. POLITICAL INTERPRETATION. Chapter X. Political Implications and Poten- ing Powers of the President... Chapter XI. Political Safeguards and Private Remedies.... Appendix. Technical Analysis... Bibliography.... 201 251 292 315 325 TABLE OF CASES (It will be noted that some of the cases in the following Table have no page references. These cases are not referred to in the text, but are included here as they bear on the subject). Albridge vs. Williams, 3 How. 1.... Alexander vs. State, 56 Ga. 478. Arnett vs. State, 80 N. E. 153. Arver vs. United States, and other cases, The Selective Draft Law Cases, 245 U. S. 366.. Barbier vs. Connolly, 113 U. S. 27. Brig Aurora vs. United States, 7 Cr. 382. PAGE 184 .102, 130, 145, 147, 158 259 .132, 183, 186 305 48, 139, 144 145 144 Brushaber vs. Union Pacific R. R. Co., 240 U. S. 1. 35, 58, 68, 130, 143, 144, 150, 152, 155, 162 St. 88. Cincinnati, Wilmington, &c. Railroad vs. Commissioners, 1 Ohio City of Clinton vs. Philipps, 58 Ill. 102. City of Evansville vs. Miller, 146 Ind. 613. 182, 321 179 .47, 110, 206 121 165 154 Commonwealth vs. County of Hampden, 2 Pick. 414. 304 174 Cross vs. Harrison, 16 How. 164... 245 Dakota Central Telephone vs. South Dakota, 250 U. S. 163..147, 162 155 163 Deslions vs. La Compagnie Générale Transatlantique, 210 U. S. 95, 184 Dooley vs. United States, 182 U. S. 222.. .38, 56, 57, 247 Dowling and another vs. Lancashire Ins. Co., 92 Wis. 63.. 35, 39, 45, 49, 58, 121, 129, 130, 131, 144, 147, 150, 152, 216 |