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Ilan Wurman: Nondelegation at the Founding
Michael Ramsey

Ilan Wurman (Arizona State University (ASU) - Sandra Day O'Connor College of Law) has posted Nondelegation at the Founding (Yale Law Journal, forthcoming) (42 pages) on SSRN.  Here is the abstract: 

In their Article Delegation at the Founding [Ed.: available here], 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.

UPDATE:  At Legal Theory Blog, Larry Solum says: "Highly recommended.  Download it while it's hot!"