The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.