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01/14/2020

Delegation, Wilson, and Madison
Chris Green

Professors Julian Davis Mortenson and Nicholas Bagley recently made a big splash (over 1000 downloads in 2 weeks) with their attack on the originalist merits of nondelegation doctrine, Delegation at the Founding. Ilan Wurman has given an initial response to some aspects of the paper, as has Will Foster just below, and there has been no small amount of discussion on Twitter, some by me. (At one point I very unfairly mischaracterized the paper because of a lapse in my own memory.)

While it is possible that Mortenson and Bagley will rephrase their thesis in later versions of the article—I certainly hope they do—they currently put it this way (at 3): “In fact, the founding generation saw nothing untoward about provisionally delegating the power to make rules so long as Congress did not permanently alienate its power to make laws.”

This is quite a bracing thesis, and immediately attracted even my non-specialist’s attention. (I’ve always assumed that Justice Harlan had the basic picture right in 1892 in Field v. Clark--"That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution”--but of course 1892 is a long time after 1787.)  After the jump I will explain problems with how Mortenson and Bagley characterize some important details regarding James Wilson and James Madison.

Wilson first. The material quoted in Mortenson and Bagley’s footnotes makes clear that “nothing untoward” in their thesis statement is an overstatement. The founding generation looked back at mass delegations in Britain—especially the 1539 “Act that Proclamations made by the King shall be obeyed”—with horror.

Some back-story here: Henry VIII was empowered to make proclamations which “shall be observed and kept as though they were made by Act of Parliament.” 31 Henry VIII chapter 8, at 3 Statutes of the Realm 726 (spelling fixed). The act was repealed just after Henry died in 1547, when Edward VI was only 9, in 1 Edward VI chapter 12.

Despite its temporary status—i.e., the fact that Parliament could, and did, rescind it in 1547—1539 was viewed as a paradigmatic Constitutional What Not to Do in the late eighteenth century. In 1765 William Blackstone, while his theory of parliamentary omnipotence allowed the statute to be legal, called it “calculated to introduce the most despotic tyranny.” 1 Comm. 371. Hume in 1776 called it “a total subversion of the English Constitution” (3 History of England 266) and “the destruction of all laws” (3 History of England 353).

William Paley said in 1785 (Principles of Moral and Political Philosophy at 314):

[T]he act of parliament, in the reign of Henry the Eighth, which gave to the king’s proclamation the force of law, has properly been called a complete and formal surrender of the liberty of the nation; and would have been so, although no proclamation were issued in pursuance of these new powers, or none but what was recommended by the highest wisdom and utility. The security was gone.

Later, Paley commented (at 327) about the relationship of the term “unconstitutional” to mass delegations like that of 1539:

An act of parliament in England can never be unconstitutional, in the strict and proper acceptation of the term; in a lower sense it may, viz. when it militates with the spirit, contradicts the analogy, or defeats the provision, of other laws, made to regulate the form of government. Even that flagitious abuse of their trust, by which a parliament of Henry the Eighth conferred upon the king’s proclamation the authority of law, was unconstitutional only in this latter sense.

James Wilson—who later quoted this very comment in his Lectures on Law in 1790, see 1 Works 720—picked up on Paley’s theme at the Pennsylvania ratifying convention in December 1787. Wilson used the 1539 example as a reductio ad absurdum of the Blackstonian doctrine of parliamentary omnipotence. Here is the full context of what he said (2 DHRC 361—a different note-taker's version is at 2 DHRC 348) in urging the adoption of our federal Constitution:

There necessarily exists in every government a power from which there is no appeal; and which, for that reason, may be termed supreme, absolute, and uncontrollable. Where does this power reside? To this question, writers on different governments will give different answers. Sir William Blackstone will tell you, that in Britain the power is lodged in the British Parliament, that the Parliament may alter the form of the government; and that its power is absolute without control. The idea of a constitution, limiting and superintending the operations of legislative authority, seems not to have been accurately understood in Britain. There are, at least, no traces of practice conformable to such a principle. The British constitution is just what the British Parliament pleases. When the Parliament transferred legislative authority to Henry VIII, the act transferring could not in the strict acceptation of the term be called unconstitutional.

To control the power and conduct of the legislature by an overruling constitution was an improvement in the science and practice of government reserved to the American states.

Mortenson and Bagley at 28 and footnotes 101-02 present this speech of Wilson’s—the last sentence of the first paragraph, to be precise—as a defense of the constitutionality in America of 1539-style delegations, explicitly distinguishing Wilson’s concern with the “American sense” of constitutionality from Blackstone’s own, different, concern with its “British sense.” They preface that sentence with a passage (improperly pincited, alas—it’s actually on 1 Works 721, not 1 Works 526) from his 1790 Lectures on Law where Wilson was speaking in general about the nature of representation, but not specifically about 1539. They then link the two with “that’s why”—i.e., the passage from the 1790 lectures is supposed to give the rationale for Wilson’s conclusion in 1787 that a 1539-style delegation would not be unconstitutional in the American sense.

But Wilson’s conclusion in 1787 wasn’t based on the sort of reasoning Mortenson and Bagley quote from 1790. It was based on Blackstonian parliamentary omnipotence, and it functioned as a reductio.   Wilson’s point in 1787 is the opposite of the one that Mortenson and Bagley suggest. For Wilson in 1787, the sad experience of 1539 illustrates precisely why legislatures’ powers need to be limited by written constitutions. It isn’t anything even remotely like an explanation of why delegation would be constitutional under actual American constitutions. The 1539 delegation wasn’t unconstitutional “in the American sense of the term,” only because Britain in 1539 didn’t have a constitution in the American sense of the term. Wilson invoked it as a reason to have one.

Indeed, Wilson’s Lectures on Law later made abundantly clear (see 1 Works 730) that the American constitution did not tolerate the sort of transfer of power to the executive that was allowed in Britain:

The president of the United States has such powers as are strictly and properly executive; and, by his qualified negative on the legislature, is furnished with a guard to protect his powers against their encroachments. Such powers and such a guard he ought to possess: but a just distribution of the powers of government requires that he should possess no more. In this important aspect, the constitution of the United States has much more regular, more correct, and better proportioned features, than are those of the constitution of Great Britain.

On to Madison. Madison shows that even if “nothing untoward” in Mortenson and Bagley’s thesis were weakened (as Mortenson suggested, perhaps in jest, that they would) to something like “nothing unconstitutional,” it would still be in severe need of qualification. At the very end of the paper, Mortenson and Bagley acknowledge that Madison made an antidelegation argument against the Alien Acts in his “Report of 1800,” a follow-up to the Virginia Resolutions of 1798. They call it at 107 “what looks like a nondelegation claim.” Appearances do not deceive: it is indeed a nondelegation argument of the most straightforward kind.

Mortenson and Bagley then claim at 107-08 that Madison was “unusual to the point of idiosyncrasy,” because few others made the same argument. Madison’s report of 1800 “attracted little notice,” Mortenson and Bagley tell us.  But it is extremely important to note, as they do not, that a nondelegation argument appears in the Virginia Resolutions themselves. Virginia’s constitutional argument against the Alien Act was very short. Besides the lack of a federal power over aliens, Virginia argued that the Alien Act, “by uniting legislative and judicial powers to the executive, subverts the general principles of free government, as well as the particular organization, and positive provisions of the federal constitution.” There are only 3 constitutional arguments here: lack of federal power, improper delegation of judicial power, and improper delegation of legislative power. And the Virginia Resolutions attracted quite a lot of notice.

Though they do not set out the text of the Virginia Resolutions, Mortenson and Bagley themselves acknowledge that Madison wasn’t the only one to make nondelegation arguments in 1798; they note in footnote 409 that two others made them regarding the Alien Act and in footnote 380 that eleven (!) others made them regarding the army bill earlier in the year, and Madison and others applied non-delegation principles to condemn particular bills as early as 1791. Even Madison alone, though, is important enough to require an explicit qualification before speaking en masse about “the founding generation” in ways that don’t apply to him. James Holzhauer beat Ken Jennings last week by remembering that Madison was short; forgetting Madison’s intellectual statute as an element of the “the founding generation” would be a mistake.

This is especially important because Madison said the same thing about delegation in 1788 and 1789 that he said in 1791, 1798 and 1800, and the House of Representatives agreed with him.  

Some more backstory. Textually, the merits of a nondelegation doctrine depend on the implicit temporal scope of “all” and “vested” in Article I section 1: “All legislative powers herein granted shall be vested in a Congress…” Does that implicitly mean permanently vested, or can Congress give legislative power away as long as it retains the power to recapture it? Massachusetts in 1780 made the relevant temporal scope explicit by saying its executive could “never” exercise legislative power.

What about the federal Constitution, though? Was it like Massachusetts’s? Madison in Federalist 47, written in February 1788, said yes. Agreeing with Montesquieu that “[t]here can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” he said,

The constitution of Massachusetts has observed a sufficient though less pointed caution [i.e., less pointed than New Hampshire], in expressing this fundamental article of liberty. It declares “that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them.” This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the convention.

It is possible that Mortenson and Bagley plan in later versions of their article to tell some sort of story about what a requirement that the executive “never” exercise legislative power might mean, besides some sort of ban on delegation. Perhaps Mortenson and Bagley would say that arguments like Federalist 47 only “speak generally to the undesirability of vesting all constitutional powers in one body,” as they say at 21 that Justice Gorsuch’s Gundy-dissent sources sometimes do. (Gorsuch quotes the same Montesquieu-quoting bit from Federalist 47 that I do.) But in fact Federalist 47 speaks quite specifically about executive exercises of legislative power, and Mortenson and Bagley (in this draft, at least) do not so much as mention it.

Federalist 47 was published in February 1788. The next year, during the First Congress in August 1789, Madison proposed making this equation of the federal and Massachusetts approaches to the separation of powers explicit, and the House agreed with him. To their credit, Mortenson and Bagley note the episode (at 1 Annals of Congress 760) at 89 footnote 320, but the context makes it much more powerful than they let on, both because Roger Sherman and Madison thought it was declaratory of the Constitution’s current meaning and because it was in fact adopted by the House of Representatives. Sherman thought there was no need for it, but Madison thought it would “tend to an explanation of some doubts,” i.e., the same doubts Madison had addressed in Federalist 47. It is true that Samuel Livermore thought the amendment “subversive of the Constitution.” Livermore, who presided over New Hampshire’s constitutional convention of 1791 while still serving in Congress, probably preferred the sort of locution in New Hampshire’s constitution, making powers “as separate from, and independent of, each other as the nature of a free government will admit.”  Livermore lost the micro-debate, though.

Here’s the whole discussion at 1 Annals 760-61 (like Mortenson and Bagley, I use the pagination in the version available in Hein Online, published by Gales alone, rather than the Gales & Seaton version available here, whose page numbers are different):

The 8th proposition in the words following was considered, "Immediately after article 6, the following to be inserted as article 7:"

“The powers delegated by this Constitution to the Government of the United States, shall be exercised as therein appropriated, so that the Legislative shall not exercise the powers vested in the Executive or Judicial; nor the Executive the power vested in the Legislative or Judicial; nor the Judicial the powers vested in the Legislative or Executive."

Mr. Sherman, conceived this amendment to be altogether unnecessary, inasmuch as the Constitution assigned the business of each branch of the Government to a separate department.

Mr. Madison supposed the people would be gratified with the amendment, as it was admitted that the powers ought to be separate and distinct; it might also tend to an explanation of some doubts that might arise respecting the construction of the Constitution.

Mr. Livermore, thinking the clause subversive of the Constitution, was opposed to it, and hoped it might be disagreed to.

On the motion being put, the proposition was carried.

Mortenson and Bagley’s footnote 320 interprets “the proposition” here as Livermore’s hope that the separation-of-powers amendment would be defeated. They say, after quoting Livermore’s “hoped it might be disagreed to,” “It promptly was.” No: “the proposition” refers to the amendment itself, “the 8th proposition.” It was actually approved by the Committee of the Whole on August 17, 1789, when this discussion took place; that’s what “the proposition was carried” meant. On August 21, 1789, the House itself approved it without debate. “The eighth proposition was approved in the same manner,” i.e., “without debate.” 1 Annals 767.

Mortenson and Bagley suggest that the separation-of-powers provision, like his 1800 antidelegation argument against the Alien Act, was something Madison was idiosyncratically attached to, but in fact the House summarily approved it; the Senate was the one that later blocked the separation-of-powers proposal. The Senate’s proceedings in 1789 were not, alas, published. William Maclay, on whose journal we generally rely to know what was going on in the Senate, was sick in early September when the Senate discussed the Bill of Rights. But whatever happened in the Senate, the bulk of the House of Representatives—even Roger Sherman, who thought the proposal unhelpfully redundant with what the vesting clauses already required—clearly agreed with Madison’s general proposition that legislative power could not be transferred to the executive. Congressional retention of a 1547-style power to take it back was not enough.