DELEGATION AT THE FOUNDING - Columbia Law Review

This Article refutes the claim that the Constitution was originally understood to contain a nondelegation doctrine. The Founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power—let alone by empowering the judiciary to police legalized limits. To the contrary, the Founders saw nothing wrong with delegations as a matter of legal theory. The formal account just wasn’t that complicated: Any particular use of coercive rulemaking authority could readily be characterized as the exercise of either executive or legislative power, and was thus formally valid regardless of the institution from which it issued.

Indeed, administrative rulemaking was so routine throughout the Anglo-American world that it would have been shocking if the Constitution had transformed the workaday business of administrative governance. Practice in the new regime quickly showed that the Founders had done no such thing. 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, with little if any guidance to direct them. 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.

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* Professors of Law, University of Michigan. Thanks for helpful comments to Greg Ablavsky, Jonathan Adler, Kevin Arlyck, Will Baude, Jack Beerman, Josh Chafetz, Katherine Mims Crocker, David Feldman, Will Foster, Brian Frye, Chris Green, Don Herzog, Andy Hessick, Carissa Hessick, Kristin Hickman, Andrew Kent, Guha Krishnamurthi, Andrew Lanham, Gary Lawson, Marty Lederman, Rob Natelson, Nick Parrillo, Richard Pierce, Dave Pozen, Nicholson Price, Zach Price, Richard Primus, Adam Pritchard, Mike Rappaport, Matt Steilen, Rena Steinzor, Allen Sumrall, Etan Thomas, Joe Tomain, Chris Walker, Derek Walker, Matt Waxman, Adam White, and Ilan Wurman, as well as attendees at workshops at Arizona, George Mason, Harvard, Michigan, and Wisconsin law schools. We are particularly grateful for terrific substantive feedback from Sara Tofighbakhsh and outstanding research assistance from Brian Remlinger and Ingrid Yin.

Introduction

Like a bad penny, the nondelegation doctrine keeps turning up. Its persistence is puzzling. Apart from two cases in one exceptional year, the Supreme Court has never relied on the doctrine to invalidate an Act of Congress. 1 See Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315, 322 (2000) (“We might say that the conventional doctrine has had one good year, and 211 bad ones (and counting).”). Its reinvigoration would mark a radical break with constitutional practice and could entail the wholesale repudiation of modern American governance. Yet some critics of the administrative state still claim that the Constitution was originally understood to contain an implicit bar on delegating legislative power. On their account, the zealous application of a nondelegation doctrine is necessary to bring “a second coming of the Constitution of liberty,” 2 Douglas H. Ginsburg, Delegation Running Riot, 18 Regul. 83, 84, 87 (1995) (reviewing David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation (1993)) (“[T]he odds on selling regulatory reform to Congress are at this moment a good deal better than the odds on selling the nondelegation doctrine to the Court.”). one consistent with the Constitution’s original public meaning. 3 See, e.g., Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 334–35 (2002) (“[T]hose who reject a meaningful nondelegation doctrine . . . should not pretend to speak in the name of the Constitution.”).

These originalist arguments have recently found a receptive audience at the Supreme Court. In Gundy v. United States, Justice Gorsuch penned a long dissent bristling with citations to originalist scholars and calling on the Court to revive the nondelegation doctrine. 4 139 S. Ct. 2116, 2131–48 (2019) (Gorsuch, J., dissenting). Chief Justice Roberts and Justice Thomas joined the opinion, and Justice Alito wrote separately to signal his “willing[ness] to reconsider the approach we have taken for the past 84 years.” 5 Id. at 2131 (Alito, J., concurring in the judgment). Although Justice Kavanaugh didn’t participate in Gundy, he issued a short opinion some months later suggesting his openness to reviving the nondelegation doctrine. 6 Paul v. United States, 140 S. Ct. 342, 342 (2019) (Kavanaugh, J., respecting the denial of certiorari) (“Justice Gorsuch’s thoughtful Gundy opinion raised important points that may warrant further consideration in future cases.”). For the first time in modern history, a working majority on the Supreme Court may be poised to give the nondelegation doctrine real teeth.

There can be no second coming, however, if there has never been a first. As a group, originalists advance widely varying versions of the nondelegation doctrine, lending a decidedly protean flavor to what is supposedly a rock-hard historical fact. But none of the variants on offer is supported by a serious review of the Founding Era evidence. There was no nondelegation doctrine if legislative power is defined as “the power to adopt generally applicable rules of conduct governing future actions by private persons.” 7 Gundy, 139 S. Ct. at 2133 (Gorsuch, J., dissenting). Without resorting to reverse-engineered exceptions that appear nowhere in the Founding discussions, neither Justice Gorsuch’s thesis nor the other variants can be squared with the lack of a single nondelegation objection to the early Congresses’ adoption of laws delegating the police power in federal lands, the power to grant patents, the power to regulate all domestic interactions with Native Americans, the power to impose embargoes, the power to impose quarantines, and the power to determine direct taxes on real property. See infra sections III.A, III.C. The claims are likewise incompatible with the fact that the norm entrepreneurs, who eventually did start to press something resembling a nondelegation doctrine, challenged not restrictions on private rights or decisions of great moment, but laws that vested in the President the ability to site post roads or call a fixed number of volunteers for military service. See infra sections III.B–.C. There was no nondelegation doctrine if legislative power is defined as regulation of “those important subjects, which must be entirely regulated by the legislature itself” rather than “those of less interest,” the details of which may be “fill[ed] up” by an exercise of executive power. 8 Gary Lawson & Guy Seidman, “A Great Power of Attorney”: Understanding the Fiduciary Constitution 118 (2017) (quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825) (Marshall, C.J.)). There was no nondelegation doctrine if legislative power is defined as “the power to make rules that b[i]nd or constrain[] subjects.” 9 Philip Hamburger, Is Administrative Law Unlawful? 83–109 (2014) [hereinafter Hamburger, Is Administrative Law Unlawful?]. There was no nondelegation doctrine if legislative power is defined as “the authority to make rules for the governance of society.” 10 Larry Alexander & Saikrishna Prakash, Reports of the Nondelegation Doctrine’s Death Are Greatly Exaggerated, 70 U. Chi. L. Rev. 1297, 1305, 1329 (2003) (offering a definition of legislative power but taking no position on whether legislative power is delegable). And there was no nondelegation doctrine if legislative power is defined as the “discretion . . . to decide what conduct would be lawful or unlawful.” 11 Aaron Gordon, Nondelegation, 12 N.Y.U. J.L. & Liberty 718, 744 (2019).

In fact, the Constitution at the Founding contained no discernable, legalized prohibition on delegations of legislative power, at least so long as the exercise of that power remained subject to congressional oversight and control. 12 Professors Eric Posner and Adrian Vermeule have advanced the only version of this argument that we are aware of in the literature. See Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. Chi. L. Rev. 1721, 1762 (2002) [hereinafter Posner & Vermeule, Interring]; Eric A. Posner & Adrian Vermeule, The Nondelegation Doctrine: A Post-Mortem, 70 U. Chi. L. Rev. 1331, 1342 (2003). But they “aren’t aware of any comprehensive professional treatment of the history of the nondelegation doctrine, so both the historical claims of nondelegation proponents and our discussion here should be taken as tentative and revisable.” Posner & Vermeule, Interring, supra, at 1732.
After they wrote those words, Professor Jerry Mashaw penned a skillful description of the administrative schemes adopted by early Congresses. Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787–1801, 115 Yale L.J. 1256, 1292–96, 1339–40 (2006) [hereinafter Mashaw, Recovering American Administrative Law]. Mashaw’s goal, however, was to demonstrate that administration was not foreign to American law, and he addressed questions pertaining to the nondelegation doctrine—and to the originalists’ arguments for such a doctrine—at a high level of generality. See id. In 2017, Professors Keith E. Whittington and Jason Iuliano supplied a detailed treatment of the nondelegation doctrine for the nineteenth and early twentieth centuries. See Keith E. Whittington & Jason Iuliano, The Myth of the Nondelegation Doctrine, 165 U. Pa. L. Rev. 379, 381–423 (2017) (compiling an exhaustive dataset of cases that involved a nondelegation challenge between 1789 and 1940). This Article aims to do the same for the Founders. As we explain in Part I, originalists’ arguments to the contrary bottom out on the insistence that the executive branch’s exercise of certain highly discretionary powers is so legislative in nature that it cannot constitute an exercise of the “executive power.” 13 See, e.g., Lawson, supra note 3, at 334 (“[A] statute that leaves to executive (or judicial) discretion matters that are of basic importance to the statutory scheme is not a ‘proper’ executory statute.”). The executive power, however, was simply the authority to execute the laws—an empty vessel for Congress to fill. 14 See Julian Davis Mortenson, Article II Vests the Executive Power, Not the Royal Prerogative, 119 Colum. L. Rev. 1169, 1235–37 (2019) [hereinafter Mortenson, Royal Prerogative]; Julian Davis Mortenson, The Executive Power Clause, 168 U. Pa. L. Rev. 1269, 1336 (2020) [hereinafter Mortenson, Executive Power Clause]. As such, it’s not just confused but incoherent to ask whether an executive action is so legislative in nature as to fall outside of that basket. Any action authorized by law was an exercise of “executive power” inasmuch as it served to execute the law. 15 See infra section II.B.

As we demonstrate in Part II, much of the confusion arises because—contrary to our modern turn of mind 16 For a typical example of modern originalists’ misunderstanding of the Founding framework, see, e.g., Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. (forthcoming Mar. 2021) (manuscript at 28), https://ssrn.com/abstract=3559867 (on file with the Columbia Law Review) [hereinafter Wurman, Nondelegation] (“Chief Justice Marshall seems to have recognized that there is a category of ‘exclusively’ legislative power . . . .”). For one admirable exception, see Alexander & Prakash, supra note 10, at 1318–20 (“Perhaps the President exercises legislative power (making laws) in the process of exercising the executive power (executing the delegating statute).”). —the Founders thought of the separation of powers in nonexclusive and relational terms. No one doubted, for example, that Congress wielded legislative power when it passed a law. But the same act was also described as an exercise of executive power, inasmuch as it was undertaken pursuant to authority entrusted by the people. 17 See infra section II.B.1. By the same token, it was common ground that a diplomat participated in a legislative act when he concluded a treaty. But it was also an exercise of executive power to the extent that the diplomat’s actions were undertaken pursuant to authorization by the relevant domestic authority. 18 See infra section II.B.2.

The Founders would thus have said that agencies wield legislative power to the extent they adopt rules that Congress could have enacted as legislation. 19 Cf. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 488 (2001) (Stevens, J., concurring in part and concurring in the judgment) (“The proper characterization of governmental power should generally depend on the nature of the power, not on the identity of the person exercising it.”). Professor Thomas Merrill has pressed a structural argument along these lines. See Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 Colum. L. Rev. 2097, 2122–31 (2004). At the same time, the Founders would have said—indeed, they did say—that such rulemaking also constitutes an exercise of the executive power to the extent it is
authorized by statute. 20 See infra section II.B. Either way, it’s constitutional. Indeed, coercive administrative rulemaking was so routine throughout the Anglo-American world that it would have been astounding if the Constitution had prohibited it. 21 See infra section II.A.2.

But it did not. To the contrary, and as Part III shows, early Congresses adopted dozens of laws that broadly empowered executive and judicial actors to adopt binding rules of conduct. Many of those laws would have run roughshod over any version of the nondelegation doctrine now endorsed by originalists. Yet, in more than ten thousand pages of recorded debate during the Republic’s first decade, the people who drafted and debated the Constitution rarely even gestured at nondelegation objections to laws that would supposedly have been anathema to them—even as they feuded bitterly and at punishing length over many other questions of constitutional meaning. 22 See infra Parts II–III. The primary historical sources reviewed for this Article include: the Annals of Congress, House Journals, and Senate Journals for the first five Congresses; the Documentary History of the First Congress; the preratification state and national records that are described in Mortenson, Executive Power Clause, supra note 14, at 1306–09 & nn.169–193; and the contemporary political and legal theory literature that are described in Mortenson, Royal Prerogative, supra note 14, at 1187 n.63. For more on how the Founders were influenced by the literature extant in their period, see id. at 1188–91. If the nondelegation doctrine had brooded secretly in the interstices of the Constitution’s Vesting Clauses, it would have precluded much early legislation and shown up repeatedly in extensive debates. Its absence speaks volumes. As the 1790s wore on, creative lawyers did very occasionally express their opposition to proposed legislation in constitutional terms. 23 See infra section III.C. But their arguments never carried the day in legislative debates. Worse still for originalists, the objections were directed at laws that would not violate any version of the nondelegation doctrine on offer today.

Our conclusion is straightforward. The nondelegation doctrine has nothing to do with the Constitution as it was originally understood. You can be an originalist or you can be committed to the nondelegation doctrine. But you can’t be both.