Nondelegation Misinformation: A Reply to the Skeptics

Abstract

Within the past few years, several law-review articles have attempted to cast doubt on the historical legitimacy of the Nondelegation Doctrine—a long-neglected principle of constitutional law 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 that the Nondelegation Doctrine has no basis in the Constitution as originally understood. “[T]he Constitution at the Founding contained no ... prohibition on delegations of legislative power,” the two authors claim, and at any rate, the Framers would have considered any “rulemaking pursuant to statutory authorization,” no matter how broad the authorization, to be “an exercise of executive Power.” Another recent article taking a similar position is Nicholas Parrillo’s ambitious 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 a target of these and other anti-nondelegation polemics, I am unconvinced. I remain of the opinion that, as I argued in a prior article, the Nondelegation Doctrine has a firm foundation in the Constitution’s original meaning. Despite 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 Doctrine’s constitutional bona fides, either. This Article advances 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, Bagley, and Parrillo.
An earlier version of this piece was available as a working paper under the title, “Nondelegation Misinformation: A Rebuttal to ‘Delegation at the Founding’ and its Progeny.”

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