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The Evolution from a Legislative Toward a Judicial Model of Payment, 45 La Louisiana Law Review Volume 45 | Number 3 The 1984 Revision of the Louisiana Civil Code's Articles on Obligations - A Student Symposium January 1985 The iH story of Claims Against the United States: The volutE ion from a Legislative Toward a Judicial Model of Payment Floyd D. Shimomura Repository Citation Floyd D. Shimomura, The History of Claims Against the United States: The Evolution from a Legislative Toward a Judicial Model of Payment, 45 La. L. Rev. (1985) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol45/iss3/1 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. THE HISTORY OF CLAIMS AGAINST THE UNITED STATES: THE EVOLUTION FROM A LEGISLATIVE TOWARD A JUDICIAL MODEL OF PAYMENT Floyd D. Shimomura* TABLE OF CONTENTS Page INTRODUCTION ......................................... 626 I. THE "LEGISLATIVE MODEL" (Colonial Period-Civil W ar) ............................................. 627 A. Development-The Colonial Legislative Tradition 627 1. The Seventeenth Century ................... 627 2. The Eighteenth Century .................... 630 3. Articles of Confederation (1781-1789) ....... 634 B. Triumph-Congress over Court in the Early R epublic ..................................... 637 1. Early Struggle (1789-1794) .................. 637 2. Congressional Adjudication (1794-1838) ...... 643 C. Decline-Inundation of Congress by Claims ..... 648 1. Dissatisfaction (1838-1855) .................. 648 2. Advisory Court (1855-1860) ................. 651 It. THE "HYBRID MODEL" (Civil War-World War 653 II). ................................. ............. A. Development-Congress Seeks Court Assistance.. 654 1. Congressional Request (1860-1863) .......... 654 2. Judicial Rejection (1864-1865) ............... 658 B. Triumph-Congress and Court Reach Uneasy 659 Accom m odation ............................... 1. Accommodation on Payment and Non- 659 Enforceability ............................. 2. Accommodation on Advisory Jurisdiction .... 662 3. Accommodation on Theory................. 666 C. Decline-The Accommodations Break Down ..... 670 1. Breakdown-Advisory Jurisdiction ........... 670 Copyright 1985, by LOUISIANA LAW REVIEW. * Acting Professor of Law, University of California, Davis, School of Law. LOUISIANA LA WREVIEW [Vol.45 2. Breakdown-Payment and Non-Enforceability 674 3. Breakdown-Theory ....................... 678 III. THE "JUDICIAL MODEL" (World War II to P resent) ........................................... 682 A. Development-Congress Relinquishes Control .... 682 1. Relinquishment-Tort Claims ............... 682 2. Relinquishment-Article III Status of Court of 684 C laim s .................................... 3. Relinquishment-Automatic Payment of Most 686 Judgm ents ................................ B. Triumph-Toward a "Judicial Model".......... 687 1. A "Judicial Model" of Article III .......... 687 2. A "Judicial Model" of Claims Jurisdiction.. 690 3. A "Judicial Model" of Enforcement ........ 694 4. A "Judicial Model" of Organization ........ 696 CO N CLU SIO N ........................................... 698 INTRODUCTION Americans have always agreed that an individual with a monetary claim against the United States ought to be able to petition his gov- ernment for a redress of this grievance. The disagreement has been over where this petition ought to be lodged: in Congress or the federal courts. When an individual presents a monetary claim against the United States, two fundamental interests are involved: (1) the individual's interest in receiving fair consideration and prompt payment of a meritorious claim; and (2) society's interest in maintaining democratic control over the allocation of limited public revenue among competing public needs. Given these two competing interests, a basic question of institutional allocation of responsibility arises. Which branch of government, Congress or the federal courts, should have the final say in balancing the individual's interest in payment against the public's interest in possibly competing uses for such funds? Stated differently, should claims against the United States ultimately be treated as fiscal questions for Congress, or legal questions for the courts, or perhaps something in between? Moreover, how is this latter question to be decided, and who decides it? The history of claims against the United States is the story of how each generation of Americans has attempted to resolve these questions. Not surprisingly, the answers have been different over time. This article divides American history into three periods. The first period is called the "legislative model" and extends from colonial times until the Civil War. During this early period, private claims were regarded as fiscal matters that were the proper and natural province of legislative 19851 CLAIMS AGAINST THE UNITED STATES bodies which maintained control over the public purse-strings. Accord- ingly, Congress, until as late as the Civil War, received and attempted to determine private claims itself by use of its committee system or congressional bodies subject to its control. The second period is called the "hybrid model" and covers the period from the Civil War until World War II. During this transitional period, the public increasingly came to view private claims as legal rather than political matters. How- ever, Congress was reluctant to part with its traditional authority. There- fore, Congress continued to consider claims, particularly tort and moral claims, while gradually authorizing other categories of claims (such as contract and "taking" claims) to be determined by a special Court of Claims or, in limited instances, the regular federal courts. The third period is called the "judicial model" and extends from World War II until the present. During this most recent period, Congress has become overwhelmed with more pressing national and international concerns. Thus, it has turned over to the federal judiciary the responsibility for determining virtually all legal claims and has provided a continuing appropriation for the payment of all judgments. This article, therefore, traces the evolution of private claims from the legislative hall to the courthouse. I. THE "LEGISLATIVE MODEL": COLONIAL PERIOD TO CIVIL WAR Congress, or bodies subject to its control, determined private claims against the United States from the adoption of the Constitution until the Civil War. In the early days of the republic, claims for money against the United States were regarded as financial questions for Con- gress and not legal questions for the courts. Private claimants were accustomed to pressing their claims in the legislative hall rather than in the courthouse. Legislative determination of private claims was consid- ered a natural and appropriate legislative function, and state legislatures as well as Congress followed this practice. However, by the Civil War, this "legislative model" of claims determination had broken down. This part traces: (A) the development of the "legislative model" from an abandoned practice of the seventeenth-century English Parliament which lived on in the colonial assemblies and the Confederation Congress; (B) the triumph of the "legislative model" after the adoption of the Con- stitution despite the creation of an independent judiciary; and (C) the decline of the "legislative model" in the period prior to the Civil War due to the inundation of Congress by claims. A. Development-The Colonial Legislative Tradition 1. The Seventeenth Century The seventeenth century witnessed a great struggle in England be- tween crown and Parliament over many issues, including control of state LOUISIANA LA W REVIEW [Vol.45 finances.' After the rebellion broke out in 1642, the English became accustomed to having the country's finances managed by parliamentary committees2 as the rupture with the king threw much executive business on Parliament.3 The struggle over the power to initiate and control finances continued after the Restoration in 1660 until the "Glorious Revolution" of 16884 when the Bill of Rights'-part of the revolutionary settlement-finally and decisively confirmed Parliament's power over the purse. 6 The power over appropriation, 7 however, produced an unexpected side effect. When the money appropriated for a specific purpose was not totally spent, it produced a surplus in the Exchequer which the Exchequer officials were prohibited from turning over to the Crown.' Having no executive duties, members of Parliament gradually found this a ready source from which to satisfy the private claims of their con- stituents. 9 There is no evidence that during this period the House of Commons ever developed a workable process for investigating the merits of private claimants' requests for money. 0 No standing committee was created to investigate such claims." Apparently, such claims were treated like any other request for money and were subject to the rule, first laid down in 1667, that the House of Commons would not proceed on petitions for money except in a Committee of the Whole where "any member 1. See C. Lovell, English Constitutional and Legal History 282-335 (1962). 2. F. Maitland, The Constitutional History of England 309-310 (1913). 3. Jameson, The Origin of the Standing-Committee System in American Legislative Bodies, 9 Pol. Sci. Q. 246, 257 (1894) ("The most important [parliamentary]
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