“Delegation at the Founding” and the Shifting Debate About Nondelegation and Originalism, by Eli Nachmany
Perhaps the most famous line from Justice Elena Kagan’s confirmation hearing was Justice Kagan’s submission that “we are all originalists now.” In the context of originalism and the nondelegation doctrine, we are all responding to Professors Julian Mortenson and Nicholas Bagley now. As those familiar with the nondelegation debates know, Professors Mortenson and Bagley published an article in the Columbia Law Review in 2021 (Delegation at the Founding) arguing that the nondelegation doctrine is inconsistent with the original meaning of the Constitution. Put in overly simple terms, the nondelegation doctrine is the principle that Congress may not transfer its legislative power to the executive branch. As multiple originalist Justices on the Supreme Court signal their willingness to revive the nondelegation doctrine, Professors Mortenson and Bagley’s article presents an important originalist counterargument with which the Justices must contend.
I recently published an essay in the Illinois Law Review Online, entitled The Irrelevance of the Northwest Ordinance Example to the Debate About Originalism and the Nondelegation Doctrine. The essay is in conversation with Delegation at the Founding. Among other points they make, Professors Mortenson and Bagley posit that a panoply of founding-era examples of delegations of legislative power demonstrate that the Constitution was not originally understood to embody a principle of nondelegation. My essay singles out one of these examples—the Northwest Ordinance—and counters that the passage of the Northwest Ordinance is irrelevant to the question whether the nondelegation doctrine is originalist. As I write in the essay, the traditional formulation of the nondelegation doctrine flows from the Vesting Clause of Article I, but the constitutional authority pursuant to which Congress was legislating in the Northwest Ordinance was its Article IV Property Clause power. Therefore, the passage of the Northwest Ordinance should not bear on the original meaning of the Article I Vesting Clause. Professor Lawrence Solum kindly featured the essay on his Legal Theory blog.
Unsurprisingly, I am skeptical of Professors Mortenson and Bagley’s argument. But the two have done the historical work and made an at-least-credible originalist argument that should be acknowledged, considered, and—if one disagrees with it—rebutted on the merits. Professor Ilan Wurman penned an essay in the Yale Law Journal that directly responded to Professors Mortenson and Bagley, and others (including John Kerkhoff, Chad Squitieri, and me) have also taken on aspects of the arguments in Delegation at the Founding. The point of my essay was to cleave one particular example from the herd of founding-era delegations that Professors Mortenson and Bagley presented; to be sure, the essay’s contention is merely a component part of an argument that would wholly deconstruct the piece.
Professors Mortenson and Bagley deserve respect for making their case in originalist terms. Perhaps they are wrong about the original meaning of the Constitution. But the very fact that they are doing originalist scholarship is a praiseworthy service to the law. In so doing, they have set the terms of the debate about nondelegation and originalism. And in rebutting the two, scholars (like Professor Wurman) can clarify—as a by-the-way—just how originalism is properly to be done. This process is how originalist inquiry is supposed to occur. It is difficult to overstate the impact of Professors Mortenson and Bagley on the way that scholars are beginning to think about the originalist argument for reviving the nondelegation doctrine, which has not been used to strike down a federal statute since 1935.
Professor Mortenson should get special credit—he has been willing to advance his views at Federalist Society events, including at a Harvard Federalist Society debate with Professor Wurman that I was honored to moderate. And as Professor Wurman admitted in the debate, Professors Mortenson and Bagley have at least changed the way some originalists view the contours of the nondelegation doctrine, even if they do not fully accept the Delegation at the Founding argument. Professor Mortenson has been a great sport, and his willingness to defend his views on opposing turf is laudable.
As originalism continues its march toward taking over as the prevailing method of constitutional interpretation, more originalist scholarship is a good thing. Professors Mortenson and Bagley’s article has made a splash, and responding to Delegation at the Founding will be one of the main tasks for nondelegation proponents in the years to come.
Eli Nachmany is a third-year law student at Harvard Law School, where he serves as Editor-in-Chief of the Harvard Journal of Law & Public Policy.