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Kurt Eggert: The Nondelegation Doctrine, Originalism, and Government by Judiciary
Michael Ramsey

Kurt Eggert (Chapman University, The Dale E. Fowler School of Law) has posted Originalism Isn’t What It Used to Be: The Nondelegation Doctrine, Originalism, and Government by Judiciary (Chapman Law Review, forthcoming) (84 pages) on SSRN.  Here is the abstract:

This article examines the recent scholarly debates about whether the nondelegation doctrine existed at the Founding and whether a new and more robust version of that doctrine should be constructed by the Supreme Court based on originalist claims that it was present in the original meaning of the Constitution. The article examines the evidence at the Founding and finds overwhelming evidence that Congress delegated legislative power in the early years of the Republic, that the nondelegation doctrine was rejected when it was proposed during the Constitutional Convention, and that a similar non-encroachment doctrine was rejected when proposed as part of the Bill of Rights. Today’s proponents of the nondelegation doctrine often rely on the argument that John Locke and his nondelegation mandate had great influence on those drafting the Constitution. However the historical record shows that Locke had little influence among the drafters, and that his only significant influence at the time of the drafting was with Anti-Federalists and not with the Federalists, whose views ultimately prevailed. Madison himself expressed distrust of Locke as a guide to how the powers of government should be arranged, given that Madison considered Locke’s perspective outdated and “warped” by his allegiance to England and by living under a monarchy. The article also discusses Madison’s shifting and at times contradictory views on the usefulness of a nondelegation doctrine, and his advocacy that the Constitution include a Council of Revision, made up of the Executive and judges, which would have exercised some legislative power.

The article then uses these nondelegation debates to examine whether originalism itself has a valid claim as a workable and trustworthy method of constitutional interpretation. When originalism was first conceived, it focused on the intent of the framers and mandated judicial restraint and protection of Congress’s legislative power. Now, by contrast, many originalist theorists argue that the “original public meaning” of the Constitution should govern, and some argue that the Court should exhibit “fortitude” and create a new, stricter nondelegation doctrine empowering the Court to overturn Congressional decisions about how to cooperate with the Executive Branch and what tasks to assign federal agencies. Justice Scalia argued that originalism’s greatest defect is the difficulty of applying it correctly, given the huge mass of source material that must be understood and evaluated, the limited resources judges have, and the great difficulty in “immersing oneself in the political and intellectual atmosphere of the time.” This article explores whether originalist Justices have passed this “Scalia Test” in their opinions about nondelegation. The article discusses how such a robust nondelegation doctrine would allow the Court to seize control over major policy decisions over the scope and power of the administrative state, a policy role that the framers of the Constitution explicitly rejected for the Court when they rejected the proposal of the Council of Revision. The Court creating a new, robust nondelegation doctrine would constitute judicially amending the Constitution to include a nondelegation doctrine rejected by the drafters in order to give the Court policy-making power that was also rejected by the Constitution’s drafters.