« The Controversy about the ERA Amendment Process
Mike Rappaport
| Main | Has Trump actually been impeached? Ask Chief Justice Roberts.
David Weisberg »

01/07/2020

Julian Davis Mortenson & Nicholas Bagley: Delegation at the Founding (with a Response from Ilan Wurman)
Michael Ramsey

Julian Davis Mortenson (University of Michigan Law School) and Nicholas Bagley (University of Michigan Law School) have posted Delegation at the Founding (108 pages) on SSRN.  Here is the abstract:

This article refutes the claim that the nondelegation doctrine was part of the original constitutional understanding. As a matter of theory, the founding generation saw nothing untoward about 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. 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.

Ilan Wurman (Arizona State) has this reply at the Yale Journal on Regulation's Notice and Comment Blog:  No Nondelegation at the Founding? Not so fast.  Here is the introduction: 

Julian Mortenson and Nicholas Bagley have posted a provocative and thoughtful new paper making the claim that there was no nondelegation doctrine of any kind at the founding. These two authors are careful as usual, and in several places they raise concerns and arguments that may require modifications to existing originalist claims about nondelegation. But their evidence does not quite add up to their ultimate claim: that the founding generation did not adhere to any nondelegation principle at all. ...

At the outset, it’s important to establish correctly the existing originalist claims. The standard originalist position is that there are certain kinds of things that Congress must do and the executive (or judicial) branch may never do, namely the formulation of rules regulating private conduct, i.e. telling private people (as opposed to government officials) what they can and can’t do or altering their rights or obligations. Yet Mortenson and Bagley often describe the originalist position as being that any “rulemaking” is an exercise of legislative power that cannot be delegated. I know of no originalist who actually holds such a view, and I encourage Mortenson and Bagley to remove the several characterizations to the contrary. (For example, p. 21: “First, the critics have argued that rulemaking is an exercise of legislative power that may not be delegated by the legislature. Second, they insist that rulemaking can’t qualify as an exercise of executive power, which is limited to the particularized application of existing rules.”)

The paper’s central problems, however, relate to its interpretation of the evidence of “what the Founders said” and “what the Founders did.” This post challenges the paper’s interpretation of “what the Founders said” on two counts: their understanding of nonexclusive powers, and the distinction between delegation and alienation. It then argues that the paper’s evidence of “what the Founders did” does not prove what Mortenson and Bagley think it does. Their evidence from the First Congress does, I think, establish that the modern originalist “private conducts/private rights” nondelegation test might have to be modified—and here their paper contributes the most to the scholarship and originalists must take its claims seriously. But the evidence does not prove there was no nondelegation doctrine at all. ...

And in conclusion:

In short, I lose no sleep over any of the statutes that Mortenson and Bagley unearth. But what of the following hypothetical statutes? “Any common law court shall decide who shall be a citizen, for whatever reason the court sees fit to declare someone a citizen.” Or, “The patent office shall decide whether the United States government should give patents, the term of years, and the grounds on which to grant patents.” Or, “The President may issue regulations carrying into effect any of the powers vested in Congress in Article I, Section 8.” Mortenson and Bagley’s paper does not prove that these kinds of statutes would have been permissible. It does not demonstrate that there was no nondelegation principle at the founding. It proves, at most, that originalists might need to think more about the limitations of their current “private conduct” theory of nondelegation.  

(Via Josh Blackman at Volokh Conspiracy.)