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10/12/2020

Eli Nachmany on To Delegate Or Not To Delegate: Celebrating A Scholarly Exchange About Originalism And The Nondelegation Doctrine
Mike Rappaport

At Jotwell, Eli Nachmany writes: 

A riveting originalist debate over the nondelegation doctrine is currently playing out in the legal academy. The nondelegation principle suggests, in part, that “Congress cannot delegate its legislative power to the executive.” In their recent article Delegation at the Founding, Professors Julian Mortenson and Nicholas Bagley argue that the framers originally understood the Constitution to permit such delegation. In a forthcoming essay in the Yale Law Journal, aptly titled Nondelegation at the Founding, Professor Ilan Wurman takes the opposite position.

Nachmany discusses both sides of the debate: 

To support their originalist pro-delegation claim, Professors Mortenson and Bagley cite numerous open-ended statutes passed after the ratification of the Constitution, and they discuss hundreds of years of pre-ratification history as well. They also offer other evidence to bolster their contention. Professor Wurman—the author of a book on originalism—counters their approach in part with a methodological critique, illustrating that originalism is not merely an exercise in throwing everything against the wall and hoping something sticks.

Professor Wurman frowns upon Professors Mortenson and Bagley’s “draw[ing of] one clean line between 1539, the British practices of the seventeenth century, the American practices under the states and the confederation government in the third quarter of the eighteenth century, and the constitutional moment of 1787–88.” He also lodges a more substantive set of specific critiques. He addresses all of the positive evidence that Professors Mortenson and Bagley cite, while reframing these examples as reflective of the existence of a bar on delegation at the founding. Professor Wurman not only provides needed context for a number of Professors Mortenson and Bagley’s examples, but also turns the tables on the professors. Professor Wurman makes the point that Delegation at the Founding “discount[s]” both “significant implicit evidence” and “overwhelming affirmative and explicit evidence of a widespread [founding-era] belief in a nondelegation doctrine.” Professor Wurman finds that, in the end, Professors Mortenson and Bagley hang their hats on a “paucity of affirmative and explicit evidence to the contrary.”

Nachmany also focuses on how the debate shows the importance of originalism: 

What is so remarkable about the Mortenson-Bagley/Wurman debate is the turf on which it is carried out. In both articles, the authors do a fine job of keeping the focus on distilling the original public meaning of nondelegation. Certainly, citizens can disagree about originalism’s results, but as Professor Wurman points out, Professors Mortenson and Bagley’s paper refreshingly “reflects a candid recognition that originalist work is possible.” In other words, the productive and illuminating back-and-forth here is a promising sign of things to come for those who are simply interested in the prospect of finding the correct answer as a matter of originalism when engaging in constitutional interpretation.