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57 Hamilton had a singular influence on the articulation and subsequent development of the executive’s prerogative powers, the first component of the federal magistracy. But the second part—a close, symbiotic relationship between the executive and the judiciary—was established by a more collaborative effort among the treasury secretary, the federal courts, and Congress. Recall that the federal magistracy that Hamilton envisioned combined the judgment and discretion of vigorous executive officials with the judicial oversight and even administrative actions of federal judges. Both the executive and judicial departments shared inherited authorities from the English magistrate, or justice of the peace. In practice, this relationship between the magisterial departments of government grew out of separate but similar efforts by Congress and Hamilton to get federal judges actively involved in the administration of federal law and policy. Rather than exclude the federal courts from the day-to-day business of administering law, both Hamilton and Congress actively sought federal judges’ input in the executive’s decision -making process and in the supervision of national policy. For the most part, the federal judges eagerly complied. Exploring the close-knit, collaborative relationship between executive officials and judges as administrators exposes a bustling, but usually forgotten , jurisdiction of the federal courts, as well as the day-to-day intricacies Administrative Accommodation in the Federal Magistracy two x 58 chapter two of the federal magistracy. As we have already seen, John Marshall and his brethren took the opportunity presented by those legal questions surrounding executive discretion to position the federal courts as the final expositors of constitutionality for the national government. The Marshall and Taney courts often made these sorts of constitutional claims in the early republic and antebellum eras.1 The still-dominant narrative of federal court development tracks the Supreme Court’s adjudications of great constitutional questions, and as a result, the judiciary appears to be aloof and distant from the day-to-day business of governing.2 This familiar and important narrative presents only one side to the development of federal courts’ jurisdiction and authority in the early republic. The constitutional arbiter story ignores the early courts’ active engagement in the business of administering law; it also almost always neglects the involvement of busy federal district courts in administrative matters. In fact, federal district judges most directly resembled their English and colonial magistrate forebears, as judges clothed with judicial power who also ensured that laws enacted by the sovereign would be executed within their districts . These judges also worked and corresponded with Secretary Hamilton and his customs collectors as part of a combined judicial–executive effort to execute federal law. In this way, the federal courts became, right from the start, a vibrant, busy federal venue for administering law and policy—a lucrative function set apart from, though contributing to, their tentative but developing role as constitutional umpires. The federal courts did not get involved in administrative matters by pronouncing themselves to be administrators. On the contrary, Congress usually created administrative responsibilities for a particular federal court or its justices through statutes. The best-known example is Congress’s failed efforts to include the federal courts in the administration of the 1792 Invalid Pensions Act.3 In this instance, the federal courts protested their assigned roles in administering the act, citing the statute’s purported violation of the separation of powers principle. Ultimately, federal circuit judges refused to fulfill their statutory mandate in Hayburn’s Case.4 Under the Invalid Pensions Act, the particular problem was that Congress gave the federal circuit courts administrative responsibilities, then allowed the secretary of war to revise their judicial decisions. When instead Congress assigned tasks to the judges as individuals, rather than to the judicial court on which they sat, the federal judges were willing to participate as administrators.5 Congress, for example, recruited district judges to administer the provisions of its 1790 statute concerning the seaworthiness of sailing vessels. In Administrative Accommodation in the Federal Magistracy 59 order to go to sea, Congress required the master of the vessel to petition a district judge (or local justice of the peace) to first appoint three mariners to appraise the vessels for statutory required food, water, and medicine chests as well as its general fitness for ocean voyaging. After the mariners reported back, the judge had the ultimate discretion to decide on the vessel’s seaworthiness , or the steps that must be taken before the vessel could sail.6 Similarly, under the Remitting...


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