Nondelegation Misinformation: A Rebuttal to 'Delegation at the Founding' and its Progeny

Abstract

Within the past few years, there has been a surge in scholarship arguing that there is no constitutional basis for the Nondelegation Doctrine—the long-neglected constitutional principle that forbids Congress from delegating authority so sweeping as to be “legislative” in nature. Perhaps the most notable of these is “Delegation at the Founding,” in which Julian Mortenson and Nicholas Bagley argue on historical grounds that the Nondelegation Doctrine has no basis in the Constitution as originally understood. On the contrary, the two authors claim, “the Constitution at the Founding contained no … prohibition on delegations of legislative power”; to the Framers, any “rulemaking pursuant to statutory authorization,” no matter how broad the authorization, “was an exercise of executive Power.” Another recent article taking a similar position is Nicholas Parrillo’s piece on the federal direct tax legislation of 1798, which he uses as the centerpiece of his own historical argument that the Constitution enshrined no meaningful nondelegation principle.

As one of the targets of these anti-nondelegation polemics, I am unconvinced. In a prior article, I took the position that the Nondelegation Doctrine has a firm foundation in the Constitution’s original meaning. Despite one hundred ten pages of their best efforts, Mortenson and Bagley fail to call that conclusion into doubt. And Parrillo’s argument, while stronger than Mortenson and Bagley’s, ultimately does not undermine the Nondelegation Doctrine’s constitutional bona fides, either. In this Article, I advance a reinforced argument that the Nondelegation Doctrine is amply justified under an originalist reading of the Constitution while highlighting the flaws in recent scholarly arguments to the contrary, especially those made by Mortenson and Bagley and Parrillo.

Keywords: Non-delegation, Constitution, Originalism, Interpretation, Regulation, History, Framing, Response, Mortenson, Bagley, Founding, Delegation, Separation of Powers, Nicholas, Parrillo, Christine, Chabot, Kevin, Arlyck, Direct, Tax, 1798