The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The past two years has seen a burst of new scholarship challenging and defending the historical pedigree of the Nondelegation Doctrine. As I noted in this post, several important articles question whether founding era understandings and practice support the existence of a constitutional (and judicially enforceable) constraint on the delegation of legislative power to the executive branch. In addition to the papers cited in that post, there is additional recent work by Michael McConnell and Jed Shugerman that bears on this subject.
Among the most powerful challenges to conventional originalist accounts of the Nondelegation Doctrine was Nicholas Parillo's Yale Law Journal article "A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s." This paper has drawn a new response.
In "Public Rights and Taxation: A Brief Response to Professor Parrillo," Ann Woolhandler questions whether Parillo's article undermines originalist claims for the existence of a nondelegation doctrine as much as some might think. Here is the abstract:
A division exists between scholars who claim that Congress made only limited delegations to executive officials in the early Republic, and those who see more extensive delegations. In A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, Professor Nicholas Parrillo claims that congressional delegations under the direct tax of 1798 undercut arguments that early delegations of rulemaking either addressed unimportant issues or were limited to special categories. Nondelegation scholar Professor Ilan Wurman responded to Parrillo in the volume of the Yale Law Journal in which Parrillo's article appeared, particularly arguing that Congress itself addressed the important issues as to the 1798 tax. This paper instead focuses on Parrillo's claim that the 1798 tax did not fall within any limited special category for nondelegation purposes. Admittedly, Parrillo's evidence undermines some generalizations that early rulemaking was not "coercive and domestic." Taxation, however, falls into the category of public rights, which could include matters that were domestic and coercive, but that nevertheless allowed for a more lenient application of separation of powers strictures.
One point that Woolhandler's comment underscores is that contemporary characterizations of the scope, nature, importance of particular delegations may not track with those of the founding period. Indeed, the prevailing categories and characterizations of 1787 might not even make much sense to modern commentators. But insofar as the original meaning of the Constitution does place limits on the delegation of legislative power, founding era characterizations and understandings would be more important than those of today.