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05/28/2020

Julian Davis Mortenson & Nicholas Bagley on Nondelegation
Michael Ramsey

In The Atlantic, Julian Davis Mortenson & Nicholas Bagley: There’s No Historical Justification for One of the Most Dangerous Ideas in American Law (drawing on their longer paper here).  From the introduction:

Most government activity in the United States rests on a simple idea: that it’s okay for the legislature to authorize the executive branch to regulate basically anything the legislature itself could reach—working conditions, pollution, elections, financial products, mask wearing, you name it. That idea is now under attack. Relying on a so-called nondelegation doctrine, conservative originalists insist that the Founders never intended for government to work this way. They call for courts to strike down any laws that delegate too much power—and much of the federal bureaucracy along with them.

Their argument is grounded in a cursory, selective review of the historical record; it simply falls apart under any kind of serious scrutiny. Americans in 1789 didn’t share the view that broad delegations of legislative power violated the Constitution. Indeed, they would have been baffled by the claim, because governments throughout the Anglo-American world had long relied on this very technique without controversy. There wasn’t any nondelegation doctrine at the founding, and the question isn’t close.

And on early practice:

Early Congresses followed suit. Though they often issued instructions in painstaking detail, they also delegated in sweeping terms. These delegations were neither ancillary nor of secondary importance. They were vital to the establishment of a new country—to shore up its finances, regulate its industry, govern its territories, secure its revenue, and guard against internal and external threats.

Here are a few examples, all drawn from the First Congress, which sat from 1789 to 1791:

    • Congress readopted the Northwest Ordinance, which gave to the appointed governor of the Northwest Territory and three federal judges the power to issue the territory’s entire civil and criminal code “as may be necessary and best suited to the circumstances of the district,” with no other guidance whatsoever.
    • To foster industrial innovation, Congress adopted a patent law giving the secretary of state, the secretary of war, and the attorney general the power to grant patents to new inventions whenever they “deem the invention or discovery sufficiently useful or important.”
    • Congress forbade trade or intercourse with American Indian tribes without a license—and required all licensees to be “governed … by such rules and regulations as the President shall prescribe.”

All of these laws, and others we discuss in the paper, empowered executive officials to adopt rules governing private conduct without meaningful guidance from Congress.

(Via How Appealing).

For some originalist counterarguments, see here from Ilan Wurman and here from Aaron Gordon.