Cargo of the Brig Aurora v. United States

[A18]

Discuss.

Cargo of the Brig Aurora v. United States, 11 U.S. 382 (1813)

In 1809, the United States Congress enacted a law imposing restrictions on trade with Great Britain and France. That act expired on May 1, 1810, on which date Congress passed a new law providing that, should either France or Britain "revoke or modify her edicts as that they shall cease to violate the neutral commerce of the United States, which fact the President of the United States shall declare by proclamation, and if the other nation shall not within three months thereafter so revoke or modify her edicts in like manner," then the 1809 trade restrictions were to be revived with respect to that nation.

In The Aurora v. United States, the Supreme Court dismissed the argument that this form of contingent legislation was unconstitutional with a single sentence: "[W]e can see no sufficient reason, why the legislature should not exercise its discretion in reviving the act of March 1st, 1809, either expressly or conditionally, as their judgment should direct." Justice Johnson, writing for the Court, did not have the courtesy to elaborate.

[True Federalist (진정한 연방 주의자)]

Perfectly constitutional.

[A18]

I tend to agree. It's true that when a law is to take effect in case of a given event, someone--either an executive or judicial officer--will have to determine whether that event has occurred. But this is true even when Congress specifies an effective date in a statute. Of course, determining the date is purely mechanical, whereas contingent legislation of this sort can require some judgment (imagine a statute that takes effect in case of a 'national emergency'). The problem must be understood in terms of degree, and it is not unique to contingency theory. The bottom line is that no statute, whether it is to take effect only in given circumstances or not, can ever be infinitely precise, and so someone will always have to "fill up the details."

It must be acknowledged, I think, that there are certainly extreme examples in which far too much discretion would be left to others. The answer to the question, then, is "constitutional," until it goes "too far." Of course, such flabby 'standards' (if they can fairly be called such) do little to promote the rule of law. But sometimes it's better to have an arbitrary line than no line at all.

[Emsworth]

Certainly, Congress is fully entitled to make statutes that take effect only when certain conditions are met. These conditions, however, must have some boundary; otherwise, the non-delegation doctrine would be essentially nullified, and legislative authority would pass to the President. Yet, I think that no boundary can be devised that is both clear and precise on the one hand, and reasonable on the other hand. So I would have to concede the need for some arbitrary standard.

As this particular condition relates to foreign affairs, I would be inclined to show a bit more deference to a delegation of authority to the President.