important issues related to resources owed to the government.213
In his book analyzing administrative practice during the first 100 years
after the ratification of the Constitution, Professor Jerry Mashaw discusses a
number of additional examples of early executive branch adjudication.214
They include a private act by Congress authorizing the President to determine
how to best distribute relief funds to U.S. residents who had fled Saint
Domingo during an insurrection.215 In another early private act, Congress
authorized the President to determine the most appropriate distribution of
funds to individuals suffering property damage as a result of defending the
government during the Whiskey Rebellion.216 From early on, lower-level
officials appointed by the President also engaged in adjudicative
determinations. Revenue officers collecting duties on distilled whiskey had
the authority to determine how large of a bond was required as security for
the future payment of duties owed on that whiskey.217 And when customs
collectors suspected importers of fraudulent reporting about the goods on
their ships, Congress directed the collectors, “in the presence of two or more
reputable merchants,” to open and examine the suspected packages.218 Any
packages found to have been fraudulently recorded were forfeited based on
In each of these instances, however, the adjudication involved the
distribution of government benefits or the recovery of resources owed to the
government—not a matter involving the deprivation of liberty or private
property.220 Moreover, despite the constitutionality of executive adjudicative
327 n.49 (observing that James Madison had supported a term limit for the Comptroller
because of his appellate authority but Congress ultimately rejected that proposal).
213. See MASHAW, supra note 195, at 327 n.49 (noting that Congress provided by statute
that the Comptroller’s decisions “would be final and conclusive to all concerned” (internal
214. See id. at 48.
215. See id. (discussing An Act Providing for the Relief of Such of the Inhabitants of
Saint Domingo, Resident within the United States, as May Be Found in Want of Support, ch.
2, 6 Stat. 13 (1794) (authorizing the President to distribute money from the U.S. Treasury to
affected persons in the manner that in his opinion is “most conducive to the humane purposes
of this act” (internal quotation omitted))).
216. Id. at 48, 331 n.90; (describing 4 ANNALS OF CONGRESS 1000–02 (1794)).
217. See An Act Repealing, After the Last Day of June Next, the Duties Heretofore Laid
Upon Distilled Spirits Imported from Abroad and Laying Others in Their Stead; and Also
Upon Spirits Distilled Within the United States, and for Appropriating the Same, ch. 15, §§
3–5, 1 Stat. 199, 199–200 (1791).
218. An Act to Provide More Effectually for the Collection of the Duties Imposed by
Law on Goods, Wares and Merchandise Imported into the United States, and on the Tonnage
of Ships or Vessels, ch. 35, § 47, 1 Stat. 145, 169–70 (1790); MASHAW, supra note 195, at 36.
219. See MASHAW, supra note 195, at 36.
220. See supra notes 194–205 and accompanying text; see also HAMBURGER, supra note
21, at 191–92 (observing that early administrative precedents discussed by Professor Mashaw
“concerned executive actions that did not bind subjects” and thus are not authoritative