Eli Nachmany on Delegation and the Northwest Ordinance
Michael Ramsey
Recently published, in the Illinois Law Review Online, Eli Nachmany (Harvard J.D. '22), The Irrelevance of the Northwest Ordinance Example to the Debate About Originalism and the Nondelegation Doctrine (2022 U. Ill. L. Rev. Online 17 (2022)). From the introduction (footnotes omitted):
The idea of the nondelegation doctrine’s return has sparked much scholarly interest, igniting a debate about whether Justice Gorsuch is correct that the original meaning of the Vesting Clause of Article I of the Constitution embodied the nondelegation principle. Professors Julian Mortenson and Nicholas Bagley published a thoughtful, provocative article in the Columbia Law Review arguing that the Constitution was not originally understood to contain a nondelegation doctrine. Professor Ilan Wurman penned a powerful response in the Yale Law Journal, taking the opposite view.
This essay argues that one of the core examples of “delegation at the founding” that Professors Mortenson and Bagley enthusiastically cite is inapposite to the nondelegation debate. In the professors’ article, the two recount how “early Congresses adopted dozens of laws that broadly empowered executive and judicial actors to adopt binding rules of conduct.” One such instance was the Northwest Ordinance...
This essay argues that Congress’s passage of the Northwest Ordinance, as well as its passage of other early territorial legislation, is irrelevant to the question whether a correct, originalist interpretation of the Constitution compels application of the nondelegation doctrine. Congress passed the Northwest Ordinance, as well as other territory-related legislation, pursuant to its power under the Property Clause of the Constitution, not any one of its Article I legislative powers. The Property Clause is a differently worded, separately housed provision of the Constitution; an early Congress’s delegation of legislative power respecting the territories might bear on the original meaning of the Property Clause, but it cannot shed light on Article I’s restriction on delegation of legislative power.
Seems right to me. At Legal Theory Blog, Larry Solum says: "Well argued and recommended."
Related: By the same author, at the Yale Journal on Regulation's Notice and Comment Blog, “Delegation at the Founding” and the Shifting Debate About Nondelegation and Originalism, including these thoughts;
Professors Mortenson and Bagley deserve respect for making their case in originalist terms. Perhaps they are wrong about the original meaning of the Constitution. But the very fact that they are doing originalist scholarship is a praiseworthy service to the law. In so doing, they have set the terms of the debate about nondelegation and originalism. And in rebutting the two, scholars (like Professor Wurman) can clarify—as a by-the-way—just how originalism is properly to be done. This process is how originalist inquiry is supposed to occur. It is difficult to overstate the impact of Professors Mortenson and Bagley on the way that scholars are beginning to think about the originalist argument for reviving the nondelegation doctrine, which has not been used to strike down a federal statute since 1935.
Professor Mortenson should get special credit—he has been willing to advance his views at Federalist Society events, including at a Harvard Federalist Society debate with Professor Wurman that I was honored to moderate. And as Professor Wurman admitted in the debate, Professors Mortenson and Bagley have at least changed the way some originalists view the contours of the nondelegation doctrine, even if they do not fully accept the Delegation at the Founding argument. Professor Mortenson has been a great sport, and his willingness to defend his views on opposing turf is laudable.
I agree with all this too.