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Writs Wrangles and Administrative Law are very much interrelated in our modern times. Yet the problem with them is no different than what began with the ‘Writs of Assistance,’ which James Otis challenged in 1761.
History tells us of the abuse of Writs such that the actions became one of the many explicit complaints that moved the Colonies closer to separation from Great Britain. Ultimately, the underlying issues became the impetus for the 4th Amendment.
Wrangles Continue To The Present
I use ‘wrangles’ in the context of both Writs and Administrative Law. Both are ‘disputes and arguments, that are long suffering in time and complicated.’ We have to understand that human sinful unregenerate nature will have individuals or group moving to dominate those in their families, towns, counties, states, nations, cultures, etc.
Use of writs in the manner of 1761 and presently as by the administrative state was once held back by the courts. Quoting from her paper in the References, Susan E. Dudley writes:
‘Until the early twentieth century, the courts interpreted the separation of powers implicit in Articles I through III of the Constitution as prohibiting Congress from delegating its legislative powers to administrative agencies. In 1892, the Supreme Court declared: “that Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.”Field v. Clark, 143 U.S. 649 (1892).)</i This is known as the nondelegation doctrine.
By 1928, the Supreme Court had softened this interpretation of the separation of powers. It took a different view of the nondelegation doctrine in J. W. Hampton v. United States, when it found that Congress could delegate legislative power as long as the statute included an “intelligible principle” to guide executive action. (J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928).) That is, the Supreme Court said that delegation is constitutional as long as Congress provides executive agencies with an unambiguous standard to guide rulemaking.’
