The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

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:

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

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.