Nondelegation at the Founding
58 Pages Posted: 17 Apr 2020 Last revised: 24 Sep 2020
Date Written: March 23, 2020
In recent articles, a number of scholars have sought to cast doubt on the originalist enterprise of reviving the nondelegation doctrine. In the most provocative of these, Professors Julian Mortenson and Nicholas Bagley challenge the conventional wisdom that, as an originalist matter, Congress cannot delegate its legislative power. The question, they say, is not even close. The founding generation recognized that power is nonexclusive, and so long as Congress did not “alienate” its power by giving up the ability to reclaim any exercise of power, it could delegate as broadly as it wanted to the Executive. In an article focusing on the direct tax legislation of 1798, Professor Nicholas Parrillo argues in this volume of the Yale Law Journal that although there may have been a nondelegation doctrine at the founding, it appears to have allowed for broad discretion to regulate even private rights. And in a third article, Professor Christine Kexel Chabot argues that early borrowing and patent legislation demonstrates that Congress routinely delegated important policy questions to the Executive.
This Essay rebuts these challenges to a revived, more robust nondelegation doctrine. It demonstrates that there was a nondelegation doctrine at the founding. To be sure, the history is a bit messy, precluding any kind of categorical conclusion. But when fairly evaluated, there is almost no evidence unambiguously supporting the proposition that there was no nondelegation doctrine at the founding, while there is significant evidence, somewhat ambiguous at times but unequivocal at others, that the founding generation believed that Congress could not delegate its legislative power. As for the content of that doctrine, it appears that Congress could not, and did not, delegate discretion over “important subjects” to the Executive. What are the important policies that must be resolved by Congress are sometimes, of course, in the eye of the beholder. But at most, debates over delegation at the founding were lower-order disputes over application of this principle, not higher-order disputes over its validity.
Keywords: nondelegation, delegation, legislative power, nonexclusive powers, Mortenson, Bagley, executive power, separation of powers, legislative delegation, Wayman v. Southard, originalism, John Locke, alienation
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