Delegation at the Founding Julian Davis Mortenson Nicholas Bagley CSAS Working Paper 20-29 Delegations and Nondelegation After Gundy Delegation at the Founding by Julian Davis Mortenson and Nicholas Bagley* Forthcoming, 121 Columbia Law Review (2021) This Article refutes the claim that the Constitution was originally understood to contain a nondelegation doctrine. The founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power---let alone by empowering the judiciary to police legalized limits. To the contrary, the Founders saw nothing wrong with delegations as a matter of legal theory. The formal account just wasn’t that complicated: Any particular use of coercive rulemaking authority could readily be characterized as the exercise of either executive or legislative power, and was thus formally valid regardless of the institution from which it issued.
Indeed, administrative rulemaking was so routine throughout the Anglo-American world that it would have been shocking if the Constitution had transformed the workaday business of administrative governance. Practice in the new regime quickly showed that the Founders had done no such thing. 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, with little if any guidance to direct them. 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.
* Professors of Law, University of Michigan. Thanks for helpful comments to Greg Ablavsky, Jonathan Adler, Kevin Arlyck, Will Baude, Jack Beerman, Josh Chafetz, Katherine Mims Crocker, David Feldman, Will Foster, Brian Frye, Chris Green, Carissa Hessick, Andy Hessick, Don Herzog, Kristin Hickman, Andrew Kent, Guha Krishnamurthi, Marty Lederman, Gary Lawson, Rob Natelson, Adam Pritchard, Nicholson Price, Nick Parillo, Dave Pozen, Zach Price, Richard Primus, Richard Pierce, Andrew Lanham, Mike Rappaport, Matt Steilen, Rena Steinzor, Allen Sumrall, Etan Thomas, Joe Tomain, Chris Walker, Derek Walker, Matt Waxman, Adam White, and Ilan Wurman, as well as attendees at workshops at Arizona, George Mason, Harvard, Michigan, and Wisconsin law schools. We are particularly grateful for terrific substantive feedback from Sara Tofighbakhsh, outstanding excellent research assistance from Brian Remlinger and Ingrid Yin, and abiding inspiration from the Goofus and Gallant section of Highlights Magazine. 2019 DELEGATION AT THE FOUNDING 2 Introduction.
The Rise and Fall and Rise Again of the Modern Nondelegation Doctrine 5 A. Rise and Fall. And Rise Again. Legislative Power Could Be Delegated.
The Theory of Legislative Delegations before 1789. The Practice of Legislative Delegations before 1789. Hints of an Anti-Alienation Principle. Rulemaking Pursuant to Statutory Authorization Was an Exercise of Executive Power 23 1.
The Legislative Act of Passing Statutes Could Accurately Be Described as an Exercise of Executive Power 24 2. The Legislative Act of Treatymaking Could Accurately Be Described as an Exercise of Executive Power 28 III. Delegations by the First Congress. The Police Power in Federal Lands.
Commerce and Other Interactions with Native Americans 38 4. Social Welfare and Entitlement Benefits. Finance and Budget. Tax Assessment and Enforcement.
Powers Arguably Within Another Branch’s Constitutional “Space” 42 B. The Post Roads Debate. The Pattern in Later Congresses. 53 2019 DELEGATION AT THE FOUNDING 3 INTRODUCTION Like a bad penny, the nondelegation doctrine keeps turning up.
Its persistence is puzzling. Apart from two cases in one exceptional year, the Supreme Court has never relied on the doctrine to invalidate an Act of Congress.1 Its reinvigoration would mark a radical break with constitutional practice and could entail the wholesale repudiation of modern American governance. Yet some critics of the administrative state still claim that the Constitution was originally understood to contain an implicit bar on delegating legislative power. On their account, the zealous application of a nondelegation doctrine is necessary to bring “a second coming of the Constitution of liberty,”2 one consistent with the Constitution’s original public meaning.3 These originalist arguments have recently found a receptive audience at the Supreme Court.
United States, Justice Gorsuch penned a long dissent bristling with citations to originalist scholars and calling on the Court to revive the nondelegation doctrine.4 Chief Justice Roberts and Justice Thomas joined the opinion, and Justice Alito wrote separately to signal his “willing[ness] to reconsider the approach we have taken for the past 84 years.”5 Although Justice Kavanaugh didn’t participate in Gundy, he issued a short opinion some months later in a different case signalling openness to reviving the nondelegation doctrine.6 For the first time in modern history, a working majority on the Supreme Court may be poised to give the nondelegation doctrine real teeth. There can be no second coming, however, if there has never been a first. As a group, originalists advance various versions of the nondelegation doctrine, lending a decidedly protean flavor to what is supposedly a rock-hard historical fact. But none of the variants on offer is supported by a serious review of the Founding-era evidence.
There was no nondelegation doctrine if legislative power is defined as “the power to adopt generally applicable rules of conduct governing future actions by private persons.”7 There was no nondelegation doctrine if legislative power is defined as regulation of “those important subjects, which must be entirely regulated by the legislature itself” rather than “those of less interest,” the details of which may be “fill[ed] up” by an exercise of executive power.8 There was no nondelegation doctrine if legislative power is defined as “the power to make rules that b[i]nd or constrain[] subjects.”9 There was no nondelegation doctrine if legislative power is defined as “the authority to make rules for the governance of society.”10 And there was no nondelegation doctrine if legislative power is defined as the “discretion. to decide what conduct would be lawful or unlawful. Sunstein, Nondelegation Canons, 67 U. Ginsburg, Delegation Running Riot, 18 Regul.
83, 84, 87 (1995) (reviewing David Schoenbrod, Power Without Responsibility: How Congress Abuses the People through Delegation (1993)) (“[T]he odds on selling regulatory reform to Congress are at this moment a good deal better than the odds on selling the nondelegation doctrine to the Court., Gary Lawson, Delegation and Original Meaning, 88 Va. 327, 334--35 (2002) (“[T]hose who reject a meaningful nondelegation doctrine. should not pretend to speak in the name of the Constitution., concurring in the judgment)., respecting the denial of certiorari) (“Justice Gorsuch’s thoughtful Gundy opinion raised important points that may warrant further consideration in future cases. Without resorting to reverse-engineered exceptions that appear nowhere in the Founding discussions, neither Justice Gorsuch’s thesis nor the other variants can be squared with the lack of a single nondelegation objection to the early Congresses’ adoption of laws delegating the police power in federal lands, the power to grant patents, the power to regulate all domestic interactions with Native Americans, the power to impose embargoes, the power to impose quarantines, and the power to determine direct taxes on real property.
See infra sections III. The claims are likewise incompatible with the fact that the norm entrepreneurs, who eventually did start to press something resembling a nondelegation doctrine, challenged not restrictions on private rights or decisions of great moment, but laws that vested in the President the ability to site post roads or call a fixed number of volunteers for military service. See infra sections III. 8 Gary Lawson & Guy Seidman, “A Great Power of Attorney”: Understanding the Fiduciary Constitution 118 (2017) (quoting Wayman v.
9 Philip Hamburger, Is Administrative Law Unlawful? 83--109 (2014) [hereinafter Hamburger, Is Administrative Law Unlawful?]. 10 Larry Alexander & Saikrishna Prakash, Reports of the Nondelegation Doctrine’s Death Are Greatly Exaggerated, 70 U. 11 Aaron Gordon, Nondelegation, 12 N. 2019 DELEGATION AT THE FOUNDING 4 In fact, the Constitution at the Founding contained no discernable, legalized prohibition on delegations of legislative power, at least so long as the exercise of that power remained subject to congressional oversight and control.12 As we explain in Part I, originalists’ arguments to the contrary bottom out on the insistence that the executive branch’s exercise of certain highly discretionary powers is so legislative in nature that it cannot constitute an exercise of the “executive power.”13 The executive power, however, was simply the authority to execute the laws---an empty vessel for Congress to fill.14 As such, it’s not just confused but incoherent to ask whether an executive action is so legislative in nature as to fall outside of that basket.
Any action authorized by law was an exercise of “executive power” inasmuch as it served to execute the law.15 As we demonstrate in Part II, much of the confusion arises because---contrary to our contemporary turn of mind16--- the Founders thought of the separation of powers in nonexclusive and relational terms. No one doubted, for example, that Congress wielded legislative power when it passed a law. But the same act was also described as an exercise of executive power, inasmuch as it was undertaken pursuant to authority entrusted by the people.17 By the same token, it was common ground that a diplomat participated in a legislative act when he concluded a treaty. But it was also an exercise of executive power to the extent that the diplomat’s actions were undertaken pursuant to authorization by the relevant domestic authority.18 The Founders would thus have said that agencies wield legislative power to the extent they adopt rules that Congress could have enacted as legislation.19 At the same time, the Founders would have said---indeed, they did say---that such rulemaking also constitutes an exercise of the executive power to the extent it is authorized by statute.20 Either way, it’s constitutional.
Indeed, coercive administrative rulemaking was so routine throughout the Anglo-American world that it would have been astounding if the Constitution had prohibited it.21 But it did not. To the contrary, and as Part III shows, early Congresses adopted dozens of laws that broadly empowered executive and judicial actors to adopt binding rules of conduct. Many of those laws would have run roughshod over any version of the nondelegation doctrine now endorsed by originalists. Yet, in roughly ten thousand pages of recorded debate during the Republic’s first decade, the people who drafted and debated the Constitution rarely 12 Professors Eric Posner and Adrian Vermeule have advanced the only version of this argument that we are aware of in the literature.
Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. Posner & Adrian Vermeule, The Nondelegation Doctrine: A Post-Mortem, 70 U. But they “aren’t aware of any comprehensive professional treatment of the history of the nondelegation doctrine, so both the historical claims of nondelegation proponents and our discussion here should be taken as tentative and revisable.” Posner & Vermeule, Interring, supra, at 1732. After they wrote those words, Professor Jerry Mashaw penned a skillful description of the administrative schemes adopted by early Congresses.
Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787-- 1801, 115 Yale L. Mashaw’s goal, however, was to demonstrate that administration was not foreign to American law, and he addressed questions pertaining to the nondelegation doctrine---and to the originalists’ arguments for such a doctrine---at a high level of generality. In 2017, Professors Keith E. Whittington and Jason Iuliano supplied a detailed treatment of the nondelegation doctrine for the nineteenth and early twentieth centuries.
See generally Keith E. Whittington & Jason Iuliano, The Myth of the Nondelegation Doctrine, 165 U. This Article aims to do the same for the Founders., Lawson, supra note 3, at 334 (“[A] statute that leaves to executive (or judicial) discretion matters that are of basic importance to the statutory scheme is not a ‘proper’ executory statute. 14 See Julian Davis Mortenson, Article II Vests the Executive Power, Not the Royal Prerogative, 119 Colum.
1169, 1235--37 (2019) [hereinafter Mortenson, Royal Prerogative]; Julian Davis Mortenson, The Executive Power Clause, 168 U. 15 See infra section II. 16 For a typical example of modern originalists’ misunderstanding of the Founding framework, see, e.
