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04/25/2020

Aaron Gordon: A Rebuttal to 'Delegation at the Founding'
Michael Ramsey

Aaron Gordon (Yale University, Law School, J.D. 2020) has posted A Rebuttal to 'Delegation at the Founding' (51 pages) on SSRN.  Here is the abstract:

In their recent paper “Delegation at the Founding,” Julian Mortenson and Nicholas Bagley take on the “contemporary turn of mind” in favor of reviving the long-dormant Nondelegation Doctrine, a principle of constitutional law holding that Congress may not delegate to any other entity authority so broad as to be “legislative” in nature. Mortenson and Bagley take particular aim at those modern nondelegation proponents that advocate the Doctrine’s revival on originalist grounds, arguing that the “nondelegation doctrine thus has nothing to do with the Constitution as ... originally understood .... You can be an originalist or you can be committed to the nondelegation doctrine. But you can’t be both.” Specifically, Mortenson and Bagley make two claims in response to modern nondelegation advocates: first, “the founders thought that legislative power, which they understood as the authority to issue authoritative instructions, could be delegated by whomever happened to hold it, so long as it wasn’t permanently alienated”; and second, “[u]nder the standard constitutional grammar of the founding,” any “rule-making pursuant to statutory authorization”—“no matter how broad, vague, or consequential” the authorization—“was an exercise of executive Power.”

As one of the less illustrious targets of Mortenson and Bagley’s critique, I beg to differ. In a prior article, "Nondelegation," 12 NYU J.L. & Liberty 718 (2019), I argued, among other things, that as a matter of original meaning, the Nondelegation Doctrine has a firm constitutional foundation; congressional “grants of rule-making power to agencies very often constitute delegations of legislative authority, and such delegations violate the Constitution.” My confidence in these conclusions has not been shaken, despite one hundred ten pages of Mortenson and Bagley's best efforts. If anything, their recent paper has strengthened my confidence in my earlier claims—all of which I reaffirm. Here’s why.

The Mortenson & Bagley paper is available here.  And here is Aaron Gordon's initial paper.  Also relevant: Ilan Wurman's response to Mortenson & Bagley, Nondelegation at the Founding.  In all, that's over 300 pages of nondelegation!