Was there a Nondelegation at the Founding?

Julian Davis Mortenson and Nick Bagley say "no." Ilan Wurman responds, "not so fast."

|The Volokh Conspiracy |

Justice Gorsuch's Gundy dissent urged the Supreme Court to reconsider the nondelegation doctrine. Justice Alito's concurrence in that case also expressed a willingness to take a second look at this long moribund principle. And more recently, in Paul v. U.S., Justice Kavanaugh signaled his agreement with Justice Gorsuch. By my count, there are now five Justices willing to rekindle the nondelegation doctrine. Indeed, I've wrote an amicus brief urging the Court to use the DACA case as an appropriate vehicle.

But is the nondelegation doctrine correct as an original matter? Julian Davis Mortenson and Nick Bagley wrote new article titled "Delegation at the Founding." They contend that the nondelegation doctrine was not part of the original understanding of the Constitution. Here is the abstract:

This article refutes the claim that the nondelegation doctrine was part of the original constitutional understanding. As a matter of theory, the founding generation saw nothing untoward about delegating the authority to make rules so long as Congress did not irrevocably alienate its power to legislate. Any particular use of such delegated authority could validly be characterized as the exercise of either executive or legislative power, depending on the relationships a speaker wished to emphasize. Either way, there was no basis to claim that the Constitution prohibited administrative rulemaking. As a matter of practice, the early federal Congresses adopted dozens of laws that broadly empowered executive and judicial actors to adopt binding rules of conduct for private parties on some of the most consequential policy questions of the era. Yet the people who drafted and debated the Constitution virtually never raised objections to delegation as such, even as they feuded bitterly over many other questions of constitutional meaning.

Ilan Wurman wrote a reply at the Yale JREG blog. He agrees with some of Mortenson and Bagley's claims, but draws different conclusions from the statutes passed by the First Congress. Here is the introduction:

At the outset, it's important to establish correctly the existing originalist claims. The standard originalist position is that there are certain kinds of things that Congress must do and the executive (or judicial) branch may never do, namely the formulation of rules regulating private conduct, i.e. telling private people (as opposed to government officials) what they can and can't do or altering their rights or obligations. Yet Mortenson and Bagley often describe the originalist position as being that any "rulemaking" is an exercise of legislative power that cannot be delegated. I know of no originalist who actually holds such a view, and I encourage Mortenson and Bagley to remove the several characterizations to the contrary. (For example, p. 21: "First, the critics have argued that rulemaking is an exercise of legislative power that may not be delegated by the legislature. Second, they insist that rulemaking can't qualify as an exercise of executive power, which is limited to the particularized application of existing rules.")

The paper's central problems, however, relate to its interpretation of the evidence of "what the Founders said" and "what the Founders did." This post challenges the paper's interpretation of "what the Founders said" on two counts: their understanding of nonexclusive powers, and the distinction between delegation and alienation. It then argues that the paper's evidence of "what the Founders did" does not prove what Mortenson and Bagley think it does. Their evidence from the First Congress does, I think, establish that the modern originalist "private conducts/private rights" nondelegation test might have to be modified—and here their paper contributes the most to the scholarship and originalists must take its claims seriously. But the evidence does not prove there was no nondelegation doctrine at all.

I have only had a chance to skim Mortenson and Bagley's thorough 108-page article. I hope to have a more detailed response in due course.

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  1. I think Congress would be wise to establish a procedure whereby most federal regulations require ratification by Congress before going into effect, with a quarterly (or other periodic) routine ratification bill approving everything sitting on the Federal Revister for the requisite period of time, and a slow-track procedure whereby some number of Representatives or Senators could remove a regulation from the routine-ratification procedure and put it on a slower-track closer-review procedure.

    This would accomplish the congressional oversight vetoed by Chadha and avoid non-delegation and other constitutional problems without having any real effect on most regulations. And if a handful get slow-tracked, that’s Congress exercising it’s oversight prerogative.

    1. A single vote once every quarter is the kind of rubber-stamp nonsense that would make every dictator happy. It accomplishes nothing but adding a procedural fig leaf.

      The slow-track procedure would have no teeth; any Congress Critters foolish enough to buck the party leadership would find out pretty quick. There would never be enough such fools to have any effect.

      1. Maybe Congress could vastly expand committee staffs with experts so that they can actually get additional expert advice on things rather than either relying on an agency entirely, lobbyists, or their own uniformed views. Then it wouldn’t be so much of a rubber stamp.

        1. You’d have to provide some real incentive to buck the party. Say, like wait staff: very low base pay, and the rest is per law repealed. It could be gamed by only repealing laws which name freeway overpasses and post offices, but it would be a start.

          My libertopia includes volunteer legislators, whether in a separate chamber or in the same chamber does not matter. When you vote, you can also drop your name in a separate ballot box as a volunteer. One is chosen from each district.

          Naturally this would be a self-selected bunch of prima donnas, but that would be its saving grace too. There’s be a lot who would have nothing to do with party whips, and I doubt many of them would dream of actually campaigning for a “regular” politician’s seat.

          Maybe if the repeal chamber were just volunteers, it would be independent enough to not need incentives.

    2. Reader Y….Could you not achieve the same thing (a periodic review) by mandating a sunset clause for all regulations? And require a vote to renew. Something sort of like what Congress is doing with pieces of the Patriot Act.

      1. That’s what Texas does.

        1. Right. And it actually works pretty well, except with respect to a few agencies which defined by the state constitution. So we still have a Railroad Commission, which has nothing to do with railroads any more, but does regulate the oil and gas industry. Every decade there are proposals to rename the agency, but that would take a constitutional amendment, which requires a referendum.
          More seriously, though, the Sunset Commission plays a role similar to the US Government Accountability Office. It reviews everything about agencies, and makes recommendations to the legislature. But its recommendations have teeth, because if agencies are not reauthorized, they automatically go into a process for wind-down and closure. Whole agencies and parts of agencies really do get abolished, and sections of agencies may get transferred to other agencies.
          The Sunset Commission does not repeal regulations, but getting rid of the enforcers of the regulations works pretty well.

          1. The Railroad Commission is still subject to Sunset and has undergone review several times in the last 10 years (which is unusual). I don’t think you need a constitutional amendment to change the Railroad Commission’s name.

            1. The “No standing army” requirement is still in effect, and yet the army gets funded every year. Inertia is a powerful force.

              1. Inertia may indeed be a powerful force, but somehow I don’t think it’s the reason the army is funded every year.

          2. Yes, it works pretty well in Texas except when they accidentally made everyone a licensed plumber. (And yes, before anyone screams, I agree that that’s not necessarily a bad thing. It’s just the kind of thing you’d like them to do on purpose.)

            https://loweringthebar.net/2019/05/texas-repeals-plumbing-code.html

            1. Texas did not accidentally make everyone a licensed plumber. The legislature intentionally permitted the TSPB to sunset. The Governor has attempted to reinstate the board through executive order, although there are issues with whether he has the authority to do so.

      2. XY do u happen to have any quantitative info about Texas regulation enactment, revision and renewal rates? If I could see only 2 numbers I guess I’d ask for the mean yrs since enactment of a) all regs, b) all regs still in effect.

        1. Sadly, I do not.

        2. It’s probably out there somewhere. I can tell you anecdotally that Texas is not some magical non-administrative state. We have bureaucrats, special interests, a robust lobbying industry, etc. We have the same problems with regulatory capture that exist everywhere else. We (probably) have more constitutional protection against regulation than most other states, with the current rule from the Tx SC being something more than rational-basis review for certain types of economic regulation of livelihoods. But besides that it’s a run-of-the-mill administrative state.

      3. “.Could you not achieve the same thing (a periodic review) by mandating a sunset clause for all regulations?”

        I don’t think so. There’d be a quick roll-call vote to keep everything as it is at the start of each session, then a series of huge partisan fights over which tiny little tweak to make here and there.

        1. I think for a subset of regulations, the votes would be pro forma. I agree.

          Pollock, I would be perfectly fine with those huge partisan fights over tweaks. Why? Because that process will force discussion and debate. We don’t have that now and that is what we need.

          1. ” I would be perfectly fine with those huge partisan fights over tweaks. Why? Because that process will force discussion and debate.”

            I don’t believe you understand how partisan politics work.

  2. I like the proposal for a chamber of repeal. Add a third chamber of the legislature whose only job is repealing laws and regulations, so they have to be trimming them back to look like they’re doing anything.

    Requires a constitutional amendment, of course, and would require a convention to get the amendment.

    1. My fantasy for a legislature would provide that if at any moment in time, a simple majority of legislators in any chamber sign a “repeal petition” for any law, it is repealed immediately. Also, passing laws requires 2/3 majority.

      One problem with a separate repeal chamber is that it is elected in the same way as the other chambers, making it no more likely to actual repeal laws than any other chamber. People would still vote for their side, hang the campaign rhetoric.

      Maybe if repeal is their only function, the public would care, but I think it more likely the repeal legislators would just vote to repeal the previous administration’s laws, and not much of that because it would just invite retaliation.

      Make it harder to pass laws (my 2/3 requirement), allow a majority of state legislatures to repeal federal laws, and allow ordinary people to challenge laws, decided by random juries (no voir dire), on grounds of vague, confusing, or inconsistent, with no appeal, because if ordinary people can’t understand a law, it doesn’t matter what learned judges think.

      1. I think we could get a long way to effective “repeal” just by abandoning the “ignorance is no excuse” fiction. No reasonable person can even read the sheer volume of regulations and laws that we are expected to comply with, much less actually understand them.

        If judges and juries started applying a “reasonable man” standard to whether or not the law is known or even knowable, legislatures and agencies both would have an incentive to simplify and prioritize.

        1. That is part of my libertopia: that conviction requires showing that the accused knew he was committing a crime. Seems common sense to me: if you don’t put up a fence, or at least “No Trespassing” signs, how can you expect to prosecute trespassers? If you don’t know that feather you found is an eagle’s feather, or that even keeping a found eagle feather is a felony, how can you be prosecuted for keeping it?

          1. Without some kind of “reasonable person” qualifier you’d have perverse incentives which would a) let rulebreakers off the hook, b) Incent certain people to socially harmful behaviors (deliberate ignorance of rules, feigned ignorance which must at times be supported by gratuitous risky rule violations, etc.)

          2. “conviction requires showing that the accused knew he was committing a crime”

            Most criminals are stupid. I don’t think I want to live in YOUR libertopia… it sounds like it will be overrun with criminals. I don’t know what name to give to your “get-out-of-jail free” system, but it seems qualified immunity will be a big part of it.

      2. Unfortunately, a 2/3 majority requirement to pass laws would, without some safeguard, require 2/3 majority to repeal a stupid law passed by a Congress that may have been dominated by the likes of AOC for even just a few months.

        Also, since a 2/3 majority is required to override a veto, in such a system there would be no reason to even require the President to sign a bill into law as a veto proof majority had passed it — imagine the lost photo ops and the dearth of “signing pens” that would result.

        1. My idea was to combine 2/3 ro pass laws with simple majorities in any chamber to repeal them.

          1. But, what does “repeal” mean?

            For example, a statute may consist of a base statute created by a particular bill followed, over the next ten years, by ten bills that modify the statute. Each of those bills alters the language of the statute and may rely, for coherence or effectiveness, on previous modifications to the statute. Knocking out, say, the third modification by “repealing” the bill that made that modification may leave the statute incoherent, ineffective, or even invert its effect or cause it to be contradictory or unconstitutionally vague if the seven subsequent modifications remain.

            A simple majority could, in some cases, gut or even invert the effect of legislation that required a 2/3 majority to pass.

            That doesn’t seem right and seems a bit like a suicide pact.

        2. Also, I see no purpose in an executive. Let Congress appoint the managers it wants. If they want to declare war, let them appoint the generals and civilian managers.

          I’d much rather have the legislature stuck with its responsibilities instead of palming them off on an elected manager.

  3. As a practical matter, what does it matter if the Founders saw (or didn’t see) the wisdom of a nondelegation doctrine, if we can see it in present day?

    This is an “appeal to authority” fallacy. The Founders thought acceptance of slavery was essential to creating their new republic. Now, we can see that it isn’t an essential part of the republic. It’s gone, and the republic is better for having done away with it.

    1. I’m not sure if you’re allowed to oppose originalism to that extent on VC. Have you considered Balkinization?

      1. Originalism (the words mean what they meant when they were written, despite the fact that words change meaning with the passage of time) has some validity, despite not matching the reality of the universe very well.
        Appealing to the Founders as the One True Source of governmental wisdom is not the same thing. It’s just wrong.

  4. Perhaps this issue will give Justices Gorsuch and Kavanaugh something to chew on after enlargement of the Court relegates them to long careers of authoring bitter, strident dissents.

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