It’s no surprise that in today’s post Administrative Law SSRN Reading List, February 2020 Edition, Julian Mortenson and Nick Bagley’s forthcoming Columbia Law Review article Delegation at the Founding topped the charts, with more than 1,300 downloads. This is an important article that has the potential to reshape the debate on the nondelgation doctrine.
One can quickly realize the article’s importance from the abstract:
This article refutes the claim that the nondelegation doctrine was part of the original constitutional understanding. As a matter of theory, there was no constitutional problem with delegating the authority to make rules so long as Congress did not irrevocably alienate its power to legislate. Any particular use of such delegated authority could validly be characterized as the exercise of either executive or legislative power, depending on the relationships a speaker wished to emphasize. Either way, there was no basis to claim that the Constitution prohibited administrative rulemaking of any sort. As a matter of practice, 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. 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.
Shortly after a draft of the article was posted on SSRN, Ilan Wurman penned a thoughtful, preliminary response here on the blog. He’s now posted a draft of a longer and more-detailed response, Nondelegation at the Founding, which is forthcoming in the Yale Law Journal.
Here’s the gist of his response, from the abstract:
In their Article Delegation at the Founding, Professors Julian Mortenson and Nicholas Bagley provocatively challenge the conventional wisdom that, as an originalist matter, Congress cannot delegate its legislative power. The question, they say, isn’t even close. The founding generation recognized that power is nonexclusive, and so long as Congress did not “alienate” its power by giving up the ability to reclaim any exercise of power, it could delegate as broadly as it wanted to the Executive. Mortenson and Bagley cite to a number of early statutes which, they argue, demonstrate that Congress had no problem delegating broad authority to the Executive.
This Essay demonstrates that there was a nondelegation doctrine at the founding, and that there is essentially no evidence to the contrary. It proceeds in four parts. Part I canvasses the significant affirmative evidence that the founding generation did in fact adhere to a nondelegation doctrine. The statements to this effect are both explicit—from the likes of James Madison, for instance, who made nondelegation arguments repeatedly and consistently for over a decade—as well as implicit, as when the Framers argued that each of the departments of the national government was structured in a particular way so that each would be able to execute its particular function well. Part II then canvasses the affirmative evidence for Mortenson and Bagley’s position that there was no nondelegation doctrine at the founding, i.e. that there was no limit to what Congress could delegate. As will become apparent, Mortenson and Bagley uncover at most two statements to this effect, and probably only one. Part III examines the founding-era discussions of nonexclusive powers and argues that Mortenson and Bagley fundamentally misunderstand the nature and implications of these discussions. Part IV examines the legislation of the First Congress and concludes that none disproves the existence of a nondelegation doctrine.
For those constitutional and administrative law geeks looking for reading material during this social-distancing period, these two articles are definitely worth a close read. I look forward to seeing how this debate further develops as more scholars engage with these articles and the underlying historical materials.