Today’s Ad Law Reading Room entry is “Nondelegation, Original Meaning, and Early Federal Taxation: A Dialogue With My Critics,” by Nicholas R. Parrillo, which was recently published by the Drake Law Review and posted to SSRN. (Note that the SSRN version includes an online-only appendix containing further dialogue. Parrillo also blogged about aspects of the article on these very pages yesterday, a fact unknown by the Ad Law Reading Room until this post was in draft form.)

Here is the abstract:

Proponents of toughening the nondelegation doctrine invoke original meaning. Confronted with the many congressional statutes that broadly delegated power in the 1790s, they claim that each of those acts falls into some exceptional category to which the nondelegation doctrine was supposedly inapplicable or weakly applicable, especially non-coercive matters or non-domestic matters. In a recent study in the Yale Law Journal, I brought to light major legislation of 1798 that delegated broadly, yet was coercive and domestic: the “direct tax” on all real estate nationwide, which empowered federal boards to revise the taxable values of land parcels on a mass regional basis “as shall appear to be just and equitable”—a delegation that elicited no constitutional objections. Several scholars have published rebuttals to my study, defending the idea of a tough originalist nondelegation doctrine in the face of my findings.

This Article, written for Drake University Law School’s Constitutional Law Symposium, responds to those rebuttals. First, Philip Hamburger and Aaron Gordon each argue that the nondelegation doctrine categorically prohibits administrative rulemaking, but with certain categorical exceptions, including one for fact-finding, into which they say the boards’ “just and equitable” mass revisions of 1798 fall. I respond that a fact-finding exception expansive enough to cover the boards’ indeterminate, contestable, and sweeping exercises of power will be unbounded and not distinguishable in a principled or predictable way from administrative rulemakings in general today. This means Hamburger’s and Gordon’s versions of the doctrine do not have the categorical objectivity they claim to deliver. Second, Ilan Wurman argues for a noncategorical, open-ended version of the nondelegation doctrine that allows Congress to delegate “details” but not “important subjects.” The mass-revision power of 1798, contends Wurman, was a detail. I respond that (a) the power was broader and more consequential than Wurman maintains, and (b) a theory of the nondelegation doctrine premised on the distinction between “important subjects” and “details” is so malleable as to be non-falsifiable as a historical matter, which means that any judge who invokes the theory to toughen the doctrine today is not following history’s lead but instead is engaging in a creative and political act of constitutional construction. Third, Ann Woolhandler argues for a categorical version of the nondelegation doctrine with an exception for all “public rights,” a category that includes taxation, suggesting Congress could delegate freely regarding taxation but not, say, interstate commerce. I respond that incorporating an exception for public rights (including taxation) into the nondelegation doctrine is not supported by either the discourse or the pattern of legislation in the founding era, nor by the mainstream of case law that first elaborated the doctrine in the mid-nineteenth century.

Parrillo’s article is what its title suggests: A response to several scholars critical of his earlier work on the lost history of a 1798 statute delegating sweeping rulemaking powers to federal boards of tax commissioners. If that’s all it was, it would still be important. As even some of his critics acknowledge, Parrillo’s findings provide a potentially important indication that constraints on delegation were viewed as quite weak around the time of the nation’s founding. But much depends on how those findings are interpreted, and Parrillo’s reply brief contains oodles of interesting stuff on such particulars.

What I most enjoyed about the article, however, is the masterful job it does surveying the fault lines that have emerged in the debate about delegation at the founding. Though couched as an exercise in historical inquiry, the article contains a variety of normative insights relevant to the broader controversy regarding whether to reinvigorate the nondelegation doctrine. Parrillo argues, for example, that certain moves made by nondelegation reformers to downplay the significance of the 1798 legislation reduce the attractiveness of their preferred alternatives by making those alternatives overly nebulous or by rendering them unable to meaningfully constrain delegation in line with the reformers’ stated aims. Like Parrillo’s earlier article, this response should go down as a critical intervention in the nondelegation literature.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.