50 Journal of Regulatory Compliance Issue II
resolution of these types of issues without independent judicial consideration,
Congress may determine nonetheless that resolution of such matters merits
statutory protection to encourage impartiality.221
As Professor Mashaw has extensively uncovered, from the time of the very
First Congress, Congress established numerous far-reaching mechanisms to
ensure accountability in executive action.222 For example, federal officers
could face common law suits in state court for wrongdoing in office.223 And
many federal officials had to “give bond, with sufficient sureties” prior to
entering office, “with condition for the faithful performance of the duties of
[their] office[s].”224 Official wrongdoing could cause officers to face
criminal prosecution,225 stiff monetary penalties,226 and removal from office
accompanied by a prohibition on holding any future federal office.227 Certain
officials also faced conflict-of-interest prohibitions.228 Treasury officials, for
example, could not be “directly or indirectly” involved229 in the “business of
trade or commerce”230 or “be concerned in the purchase or disposal of any
Congress today similarly could provide for many mechanisms to help
ensure the fair and lawful execution of federal power by agency adjudicators
“precedents for contemporary administrative adjudication”).
221. Cf. Lawson, Take the Fifth, supra note 19, at 23–25 (observing that under the
Constitution standing alone, executive procedures are not “even relevant to, the lawfulness of
an executive deprivation of life, liberty, or property”; such procedures become relevant to an
action’s legality only if “valid statutes prescribe necessary procedures that must be followed”).
222. See MASHAW, supra note 195 (Chapter 3); see, e.g., id. at 63 (referring to the
techniques of “oaths, bonds, forfeitures, criminal penalties, and qui tam actions” that were
imposed by congressional statute as well as “internal control” efforts via “instructions, audits,
and inspections”); id. (noting also that the Federalists preserved accountability by “leaving all
officers subject to removal”).
223. Id. at 36–37; see also, e.g., An Act to Establish the Judicial Courts of the United
States, ch. 20, §§ 27–28, 1 Stat. 73, 87–88 (1789) (describing misfeasance in office as a breach
of the bond a marshal was required to pay prior to assuming office).
224. See, e.g., 1 Stat. at 66, § 4 (describing the Treasurer’s bond requirement); 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, § 52, 1 Stat. 145, 171 (1790) (requiring collectors, naval officers, and surveyors involved
in collecting customs duties to give a bond with sureties “with condition for the true and
faithful discharge of the duties of his office according to law”); MASHAW, supra note 195, at
225. See MASHAW, supra note 195, at 67; see also, e.g., 1 Stat. at 66, § 3 (providing for
“prosecutions for all delinquencies of officers of the revenue”).
226. See MASHAW, supra note 195, at 62.
227. Id.; see also, e.g., 1 Stat. at 67, § 8.
228. MASHAW, supra note 195, at 58.
229. 1 Stat. at 67, § 8.
230. See MASHAW, supra note 195, at 58 (describing 1 Stat. at 67, § 8 (internal quotation