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.

Comments

[Martinned]

Yes, it will be interesting to see whether, on reflection, 40% of the laws passed by Congress in the first few decades and 90% of territorial law was unconstitutional. (And yes, I made those percentages up.)

[Dan Schiavetta]

If you’re going to switch from 1787 word meaning to 1787 practice, Heller is no longer good law.

[ReaderY]

As I recall the original Congress, with a single brief section of the Judiciary Act of 1789, delegated to the judiciary the creation of an entire law of admiralty for the United States.

[Aladdin's Carpet]

As I recall, some of the earliest supreme court decisions struck some of those down, see: Marbury v. Madison.

[loki13]

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

It's almost like there are a lot of people that simply say "Originalism" and use it as the basis for their own personal policy preferences. It's little different than saying that they have communed with Zombie Madison and Zombie Hamilton.

What next? Like any good religion, perhaps we should appoint scholars, like Josh Blackman, to go and discovery new texts in the desert to let us plebes know the real meaning of the Constitution back then, that shall govern us now.

[Bob from Ohio]

"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. "

Both views are besides the point.

What does the text say?

"All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

No delegation it is.

[Sarcastr0]

I don't see the word nondelegable anywhere. Who is to say whether the legislative power includes the power to delegate itself?
The Executive pretty clearly does.

[Bob from Ohio]

The President delegates to his subordinates. Congress is delegating to the executive's subordinates. Completely diferrent.

Can the Supreme Court delegate its powers to an executive branch employee?

[Martinned]

That begs the question as to whether things allegedly covered by the non-delegation doctrine is actually delegation, properly so-called.

But back to the original question: What is it about art. I of the Constitution that suggests that Congress can't make whatever law it likes that is not explicitly forbidden by art. I or by the Bill of Rights? Wouldn't the starting point be the UK parliament, except with a written constitution?

[Sarcastr0]

Live by the text, die by the text.

Text is silent on who you delegate to.

Maybe you gotta look beyond the text a bit, eh?

[Alpheus W Drinkwater]

That's the point at which you concoct a pseudo-historical bit of originalist research which supports the position you wanted to take anyway.

[Sidney r finkel]

The lack of the ability of the Congress to delegate Constitutionally authorized powers should not be an issue. Any sane understanding of the Constitution would say NO!, they cannot delegate.

Why? Because in effect delgating a Constitutional power given to the Congress to the Executive branch is a de facto amendment of the Constitution, for which there are only two methods, neither of which are an act of Congress.

The Congress is given the power to tax. That power is in no way given to the President. When Congress delegates the power to tax to the President, for example by allowing the President to impose import tariffs, that is amending the Constitution. Cannot be done! And the fact that so-called conservatives on the Court allow delegation like this belies their adherence to a strict interpretation of the Constitution and Originalism. They are just a bunch of political opportunists.

[Martinned]

Because in effect delgating a Constitutional power given to the Congress to the Executive branch is a de facto amendment of the Constitution

You seem to be confused about the difference between transferring a power and delegating it.

[Sidney r finkel]

Not really, because in the de facto context of Constitutional powers there is no real difference.

[Alpheus W Drinkwater]

Maybe, just maybe, there is no single original public meaning, and the framers and everyone else alive at the time disagreed about how much delegation was allowed. Wouldn't that be a kick in the groin of originalism.