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

Abstract

In their recent article “Delegation at the Founding,” Julian Mortenson and Nicholas Bagley take aim at modern originalists who argue on historical grounds for reviving the long-dormant Nondelegation Doctrine—the constitutional principle that Congress may not delegate authority so broad as to be “legislative” in nature. Mortenson and Bagley reject such originalist arguments, asserting that, in fact, 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.”

As one of the targets of Mortenson and Bagley’s critique (and of several other recent articles taking similar positions), I beg to differ. In a prior article, I argued that the Nondelegation Doctrine has a firm constitutional 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. Another nondelegation skeptic, however, comes much closer. Nicholas Parrillo, in a recent article, argues that the Constitution enshrined no meaningful nondelegation principle. The centerpiece of his account is Congress’s 1798 delegation of broad powers to administrators of the 1798 direct tax. Yet Parrillo’s argument, while stronger than Mortenson and Bagley’s, ultimately does not undermine the Nondelegation Doctrine’s constitutional bona fides, either. Here, I explain why—and in the process, respond to other recent scholarship that has similarly questioned the historical case for nondelegation.

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