Delegation at the Founding
120 Pages Posted: 4 Feb 2020 Last revised: 9 Dec 2020
Date Written: December 31, 2019
This article refutes the claim that the Constitution was originally understood to contain a nondelegation doctrine. The founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power---let alone by empowering the judiciary to police legalized limits. To the contrary, the overwhelming majority of Founders didn’t see anything wrong with delegations as a matter of legal theory. The formal account just wasn’t that complicated: Any particular use of coercive rulemaking authority could readily be characterized as the exercise of either executive or legislative power, and was thus formally valid regardless of the institution from which it issued.
Indeed, administrative rulemaking was so routine throughout the Anglo-American world that it would have been shocking if the Constitution had transformed the workaday business of administrative governance. Practice in the new regime quickly showed that the Founders had done no such thing. The early federal Congresses adopted dozens of laws that broadly empowered executive and judicial actors to adopt binding rules of conduct for private parties on some of the most consequential policy questions of the era, with little if any guidance to direct them. Yet the people who drafted and debated the Constitution virtually never raised even policy objections to delegation as such, even as they feuded bitterly over many other questions of constitutional meaning.
Keywords: nondelegation doctrine, nondelegation, delegation, separation of powers, Gundy, Schechter, founding, original understanding, originalism, administrative state, agencies, Locke
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