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Did the Non-Delegation Doctrine Exist at the Founding?
Will Foster

I've read through Nicholas Bagley and Julian Davis Mortenson’s important new paper, “Delegation at the Founding.” I just wanted to offer a few quick comments here. (For the record, I am sympathetic to some of the concerns raised by Ilan Wurman in his incisive post here. But I will try not to repeat his remarks below.)

1.  For starters, it’s worth noting just how broad the delegations Bagley and Mortenson’s theory allows are. “From the founders’ perspective,” they write, “nothing in the Constitution prohibited delegations of rulemaking power—no matter how broad, vague, or consequential—so long as the exercise of that power ultimately remained subject to congressional oversight and control” (pp. 3-4 of the most recent draft, as of this writing). Apparently, according to the original meaning, Congress could constitutionally pass a law saying, “The President shall have the power to declare war, confirm Supreme Court justices, and regulate interstate commerce.” 

Or maybe a judge could even write an opinion saying, "The President shall determine, at his discretion, the legal obligations of the parties before this court.” (Then again, I suppose it could be that there’s something about the nature of “judicial power” that prevents the crazy latter scenario from being permissible.) 

One has to wonder: Would the Founders really have believed it constitutional for virtually all power to be lodged in one branch of government? Of course, perhaps the concerns of their world were so different from ours that this possibility seemed too remote to be worth protecting against. 

2.  One of the few major holes in this quite lengthy and comprehensive article is the almost complete lack of discussion of fiduciary constitutional theory. Robert Natelson is not cited at all, and Gary Lawson and Guy Seidman’s A Great Power of Attorney book isn’t cited, either (although some of Lawson’s other work is mentioned). To be sure, I remain a bit skeptical of fiduciary constitutionalism as a historical matter (partly for the reasons given by Richard Primus in his article “The Elephant Problem”). But the theory at the very least presents important questions for anyone interested in the non-delegation doctrine’s Founding-era status (or lack thereof). 

For example, in their book, Lawson and Seidman -- drawing on some of Natelson’s research as a starting point -- discuss the Founding-era private law maxim delegata potestas non potest delegari (someone to whom powers are delegated cannot further delegate that authority). As Matthew Bacon put the point in his 18th century treatise, “One who has an Authority to do an Act for another, must execute it himself, and cannot transfer it to another; for this being a Trust and Confidence reposed in the Party, cannot be assigned to a Stranger.” 

Bagley and Mortenson appear to believe that the notion that government agencies could re-delegate their power was widely accepted in the Founding era (pp. 26-29). They might well be correct. Perhaps, say, the rule against re-delegation only applied to private agency relationships, not government branches. Or maybe one of the several exceptions to the rule that Lawson and Seidman identify was understood to apply. However, Bagley and Mortenson do not really discuss Founding-era fiduciary law at all, so readers are simply left to guess at how they would respond to Lawson and Seidman’s evidence. 

3.  Bagley and Mortenson spend many pages arguing that the boundaries between legislative, executive, and judicial power were porous at the Founding. But it is somewhat unclear to me what they hope to prove using that evidence. It might be true that in abstract, informal discourse those three terms had contested meanings, but with respect to our Constitution I am inclined to agree with Justices Alito and Gorsuch that Executive Branch entities “can only permissibly exercise executive power,” not legislative or judicial power. That is, if an executive branch agency is acting lawfully, it's necessarily exercising “executive power,” not any other kind of power -- as a constitutional matter, at least. True, Justices Stevens and Souter have taken the opposite view -- in their opinion, the Executive Branch can constitutionally exercise legislative power, so long as Congress authorizes such exercise. And on page five of their article, Bagley and Mortenson appear to side with that view. 

But I am more inclined to agree with Adrian Vermeule and Eric Posner that, to the extent delegations of policy discretion are permitted (whatever that extent might be), they are permitted because “agents acting within the terms of … a statutory grant are exercising executive power, not legislative power.” (Vermeule and Posner go so far as to suggest that “a statutory grant of authority to the executive branch or other agents can never amount to a delegation of legislative power.”)

4.  Bagley and Mortenson use many examples of broad delegations to territorial governments to support their argument that the Founding generation had little problem with major delegations of policy-making discretion (pp. 70-74). But what if territorial governments are a unique scenario? True, some proponents of a broad non-delegation doctrine, including Lawson, argue that Congress cannot constitutionally create territorial legislatures or other governing bodies. But others -- including apparently Justice Gorsuch -- disagree. As Justice Alito wrote in 2018, joined by Gorsuch: “[U]nlike any of its other powers, Congress’s power over the Territories allows it to create governments in miniature, and to vest those governments with the legislative, executive, and judicial powers, not of the United States, but of the Territory itself. For that reason we have upheld delegations of legislative, executive, and judicial power to territorial governments despite acknowledging that each one would be incompatible with the Vesting Clauses of the Federal Constitution if those Clauses applied.”

Bagley and Mortenson evidently anticipate this counter-argument, and respond that “[t]he substantive scope of Congress’s authority does not bear on the classification of that authority, much less on its delegability” (p. 71). I do not find this response very persuasive. It could well be that certain powers, by their nature, imply an ability to delegate, while other powers do not. I am not sure, but I don’t think we can dismiss the possibility out of hand. 

Despite the above qualms, I do really appreciate Bagley and Mortenson’s paper, which sets forth a lot of new research. Many examples of delegations they cite indeed seem quite broad (although it’s worth investigating whether the statutes actually granted as much discretion as their words suggest) -- and the authors quite damningly note that there seem to be very few clear examples of Founding-era Americans referencing any sort of robust non-delegation doctrine. On the other hand, as even Bagley and Mortenson acknowledge, there are some examples of statements to that effect. And, particularly after re-reading the relevant portion of Lawson and Seidman’s book yesterday, I still find some of their fiduciary argument compelling. Bagley and Mortenson’s paper does not mention it, much less refute it. Even so, it could well be that Bagley and Mortenson’s argument, although not decisive, casts enough doubt on the Gorsuch argument for stare decisis to kick in and do the rest of the work. Even Justice Thomas, after all, believes precedent should stand unless it is demonstrably erroneous.

RELATED (by Michael Ramsey):  Andrew Coan (Arizona) recently posted this paper on SSRN:  Eight Futures of the Nondelegation Doctrine (Wisconsin Law Review, 2020 forthcoming).  Here is the abstract:

Among close observers of the United States Supreme Court, there is a palpable sense of anticipation. Conservatives eagerly anticipate a sweeping constitutional revolution. Liberals regard this prospect with mounting dread. Using the nondelegation doctrine as an illustrative example, this Essay argues that both sides should temper their expectations.The reason is straightforward, if frequently overlooked: The Supreme Court is a tiny institution capable of deciding only a small fraction of the constitutional questions generated by the operation of the U.S. government. In many of the most important constitutional domains, the limits of judicial capacity strongly constrain the Court to defer to the political process, to cast its decisions in the form of hard-edged categorical rules, or both. Since categorical rules are frequently clumsy and poorly matched to their underlying purposes, the limits of judicial capacity create a strong hydraulic pressure on the Court to employ deferential doctrines like rational basis review that effectively cede the field to other institutional actors.