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John Kerkhoff on Julian Mortenson on Nondelegation
Michael Ramsey

At the Yale Journal on Regulation's Notice and Comment Blog, John Kerkhoff (Pacific Legal Foundation): Sources and Subdelegation.  From the introduction: 

In their important paper on nondelegation, Professors Julian Davis Mortenson and Nicholas Bagley take to task those who use thinly sourced arguments to support the nondelegation doctrine. They put it bluntly: “It should go without saying that sweeping assertions about widely shared (let alone undisputed) understandings should not rest on such scanty source material.” (p. 297).

I agree. But such a rule should apply across the board. That includes their own work—and particularly to the sweeping assertion that the Founders explicitly embraced subdelegation of legislative powers to other branches. Yet it turns out that for this claim, they cite just one lecture from one founder, and the lecture does not even say what Mortenson and Bagley suggest it does.

Last month, Professor Mortenson doubled down on this position—with the same citation—in an amicus brief to the Supreme Court in a case about an agency’s delegated powers. To my mind, the case doesn’t present much of a nondelegation issue, but lots of people think otherwise, so the case has drawn attention from all corners of the nondelegation world. ...

From the core of the argument:

To my concern with the brief. It first points out that “the legislature’s authority had already been delegated by the people.” (Brief, p. 4). That’s certainly correct. “We the people,” as sovereign, delegated powers to the separate branches—including to Congress. But the brief then goes on to say that “the propriety of further subdelegation was taken for granted.” This goes to the heart of the brief’s claim: that there was no nondelegation doctrine at the Founding. In support of this crucial proposition, the brief cites to only one source: the lectures of James Wilson. Mortenson’s law review article invokes the same citation to argue that “legislative power could be redelegated just like any other.” (p. 299).

I agree that it's problematic to rely just on Wilson to establish a widely held founding-era understanding, if that's what Professors Bagley and Mortenson are doing.

As to the substance, the post continues:

[I]t is crucial to understand what Wilson said. Here is the passage, as quoted by Mortenson and Bagley in their paper:

Representation is the chain of communication between the people and those, to whom they have committed the important charge of exercising the delegated powers necessary for the administration of publick affairs. This chain may consist of one link, or of more links than one; but it should always be sufficiently strong and discernible. (p. 299)

This passage, standing alone, can certainly be read to support Mortenson’s claim. But a closer look shows that it has nothing whatsoever to do with subdelegation of legislative powers, let alone delegations to a separate branch. The passage instead has to do with what historian Gordon Wood has explained was the new form of representation reflected in the American system of government: one in which the people for the first time were represented throughout all of government, not just the legislative branch. (WoodCreation, at p. 596-603). As the context of Wilson’s lecture makes clear, he is talking about the chain of representation from the people to judges. 

Substantial further historical discussion follows.  It's a serious challenge, and it will be interesting to see how Professor Mortenson responds.

Without looking at the matter too closely, I'm doubtful that even on its face the Wilson quote supports the Bagley/Mortenson hypothesis.  In any event, it doesn't show a founding-era reading of particular constitutional text, since Wilson was speaking very abstractly (as he often did).  I would be hesitant to rest much on it.

(Thanks to Ilan Wurman for the pointer.)