Delegation at the Founding

111 Pages Posted: 4 Feb 2020 Last revised: 13 Feb 2020

See all articles by Julian Davis Mortenson

Julian Davis Mortenson

University of Michigan Law School

Nicholas Bagley

University of Michigan Law School

Date Written: December 31, 2019

Abstract

This article refutes the claim that the nondelegation doctrine was part of the original constitutional understanding. As a matter of theory, there was no constitutional problem with delegating the authority to make rules so long as Congress did not irrevocably alienate its power to legislate. Any particular use of such delegated authority could validly be characterized as the exercise of either executive or legislative power, depending on the relationships a speaker wished to emphasize. Either way, there was no basis to claim that the Constitution prohibited administrative rulemaking of any sort. As a matter of practice, 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. Yet the people who drafted and debated the Constitution virtually never raised 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

Suggested Citation

Mortenson, Julian Davis and Bagley, Nicholas, Delegation at the Founding (December 31, 2019). U of Michigan Public Law Research Paper No. 658. Available at SSRN: https://ssrn.com/abstract=3512154 or http://dx.doi.org/10.2139/ssrn.3512154

Julian Davis Mortenson (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

Nicholas Bagley

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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