Delegation and Nondelegation at the Founding

A burst of recent scholarship exploring the Originalist case for and against the nondelegation doctrine.

The Supreme Court's renewed interest in the nondelegation doctrine has prompted a surge in scholarship looking at nondelegation in theory and practice during the founding era.

The nondelegation doctrine has been championed by prominent originalist scholars, such as Gary Lawson and Michael Rappaport, contending that the original public meaning limits the extent to which Congress may delegate power to the Executive Branch. Yet several new papers argue that there was a wide degree of delegation in the early Republic, suggesting that the Constitution was not understood to place limits on delegation. These papers include:

• Julian Davis Mortensen & Nicholas Bagley, "Delegation at the Founding" (forthcoming in the Columbia Law Review).
• Christine Kexel Chabot, "The Lost History of Delegation at the Founding."
• Nicholas Parrillo, "A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s" (forthcoming in the Yale Law Journal).

This recent scholarship has also prompted some responses. These include:

• Ilan Wurman, "Nondelegation at the Founding" (forthcoming in the Yale Law Journal).
• Aaron Gordon, "A Rebuttal to 'Delegation at the Founding.'"
• Gary Lawson, "Mr. Gorsuch, Meet Mr. Marshall: A Private-Law Framework for the Public-Law Puzzle of Subdelegation."
• Philip Hamburger, "Delegating or Divesting?" Northwestern Law Review Online.

Given the number of self-proclaimed originalists among the current justices, and the likelihood of another delegation case reaching the Court, it will be interesting to see how this burst of scholarship influences the evolution of the doctrine.