DELEGATION AT THE FOUNDING: A RESPONSE TO THE CRITICS

This Essay responds to the wide range of commentary on Delegation at the Founding, published previously in the Columbia Law Review. The critics’ arguments deserve thoughtful consideration and a careful response. We’re happy to supply both. As a matter of eighteenth-century legal and political theory, “rulemaking” could not be neatly described as either legislative or executive based on analysis of its scope, subject, or substantive effect. To the contrary: Depending on the relationships you chose to emphasize, a given act could properly be classified as both legislative (from the perspective of the immediate actor) and also executive (from the perspective of the authorizing principal) at the same time. As a formal matter, the separation-of-powers objection is thus evanescent—subject to trivial reframing. In making rules pursuant to congressional instruction, administrative agencies are simultaneously exercising both legislative power (by promulgating authoritative legal commands) and also executive power (by implementing Congress’s authoritative instructions). This is not a functionalist argument. It is an insistent demand to take formalism seriously: The same government action was understood as both executive and legislative in a strict conceptual sense. The originalist argument for nondelegation doctrine fails on its own terms.

The full text of this Essay can be found by clicking the PDF link to the left.

* Professors of Law, University of Michigan. Thanks for helpful comments from Will Baude, Lindsay Chervinsky, Liz Covart, Kurt Eggert, Jonathan Gienapp, Zach Grouev, Matt Lawrence, Shalev Roisman, Mark Shawhan, Rachel Shelden, Emily Sneff, Patrick Sobkowski, Rena Steinzor, Kenner Swain, and other readers, as well as attendees at workshops at University of Michigan Law School, New York University School of Law, Stanford Law School, and the University of Pennsylvania Carey Law School. Special thanks to Gabe Chess for outstanding research assistance, and to Nicolás N. Rodríguez and the Columbia Law Review team for their terrific work on the editorial process.

Introduction

We seem to have touched a nerve. Even before it was published, Delegation at the Founding 1 Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277, 332–49 (2021) [hereinafter Mortenson & Bagley, Delegation]. A rash of recent scholarship has similarly questioned the historical basis for the doctrine. See Kevin Arlyck, Delegation, Administration, and Improvisation, 97 Notre Dame L. Rev. 243, 248 (2021); Christine Kexel Chabot, The Lost History of Delegation at the Founding, 56 Ga. L. Rev. 81, 87–88 (2021); Nicholas R. Parrillo, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence From the Federal Tax on Private Real Estate in the 1790s, 130 Yale L.J. 1288, 1302 (2021) [hereinafter Parrillo, Critical Assessment]; John Vlahoplus, Early Delegations of Federal Powers, 89 Geo. Wash. L. Rev. Arguendo 55, 56–57 (2021); Nicholas R. Parrillo, Supplemental Paper to: “A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence From the Federal Tax on Private Real Estate in the 1790s” 3 (May 14, 2021) (unpublished manuscript), https:/‌‌‌/ssrn.com/abstract=3696902 [https://perma.cc/MMA7-9EF9] [hereinafter Parrillo, Supplemental Paper]. drew a number of responses from originalists aiming to refute our historical claim that there was no nondelegation doctrine at the Founding. 2 See, e.g., Richard A. Epstein, Delegation of Powers: A Historical and Functional Analysis, 24 Chap. L. Rev. 659, 663 (2021); Aaron Gordon, Nondelegation Misinformation: A Rebuttal to “Delegation at the Founding” and Its Progeny, 75 Baylor L. Rev. (forthcoming 2023) (manuscript at 2), https://ssrn.com/abstract=3561062 [https://‌perma.cc/‌RQF6-ZXW7]; Philip Hamburger, Delegating or Divesting?, 115 Nw. U. L. Rev. Online 88, 90 (2020) [hereinafter Hamburger, Delegating or Divesting]; Philip Hamburger, Nondelegation Blues, 91 Geo. Wash. L. Rev. (forthcoming 2023) (manuscript at 61), https://‌ssrn.com/‌abstract=3990247 [https://perma.cc/DLG4-NW53] [hereinafter Hamburger, Nondelegation Blues]; Chad Squitieri, Towards Nondelegation Doctrines, 86 Mo. L. Rev. 1239, 1272–73 (2021); Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. 1490, 1493–94 (2021); Gary Lawson, Mr. Gorsuch, Meet Mr. Marshall: A Private-Law Framework for the Public-Law Puzzle of Subdelegation, 1 & n.1 (Bos. Univ. Sch. of L., Pub. L. & Legal Theory Working Paper No. 20-16, 2020), https://‌scholarship.law.bu.edu/‌cgi/‌viewcontent.cgi?article=1906&context=faculty_scholarship [https://‌perma.cc/‌HF4Q-QDTZ]; Chris Green, Delegation, Wilson, and Madison, The Originalism Blog (Jan. 14, 2020), https://‌originalismblog.typepad.com/the-originalism-blog/2020/01/‌delegation-wilson-and-madison.html [https://perma.cc/8M4F-XQMR]; Rob Natelson, How to Correct the Context of the “Non-Delegation” Debate, The Originalism Blog (Jan. 20, 2020), https://‌originalismblog.typepad.com/‌the-originalism-blog/2020/01/how-to-correct-the-context-of-the-non-delegation-debaterob-natelson.html [https://perma.cc/RAQ2-EWWL]; Peter J. Wallison, An Empty Attack on the Nondelegation Doctrine, The Federalist Soc’y (Apr. 22, 2021), https://fedsoc.org/commentary/fedsoc-blog/an-empty-attack-on-the-nondelegation-doctrine [https://perma.cc/DZ8N-Z5D3]; cf. John Kerkhoff, Sources & Subdelegation, Yale J. on Regul.: Notice & Comment (Feb. 14, 2022), https://‌www.yalejreg.com/‌nc/‌sources-and-subdelegation-by-john-kerkhoff/ [https://‌perma.cc/‌628J-ADT8] (questioning our reading of James Wilson’s views on subdelegation). Though not directly a response, Professor Jennifer Mascott recently published an article arguing that close examination of customs legislation in the First Congress indicates the existence of the nondelegation doctrine. See Jennifer Mascott, Early Customs Laws and Delegation, 87 Geo. Wash. L. Rev. 1388, 1396 (2019). Professor Michael Rappaport has also added new arguments for a two-tier nondelegation doctrine on originalist grounds, though his article does not directly challenge our historical claims. See Michael B. Rappaport, A Two-Tiered and Categorical Approach to the Nondelegation Doctrine, in The Administrative State Before the Supreme Court: Perspectives on the Nondelegation Doctrine 195, 195 (Peter J. Wallison & John Yoo eds., 2022) [hereinafter Administrative State Before the Supreme Court]. And Professor Jed Shugerman has argued that historical evidence about usage of the word “vesting” “lend[s] support to both sides” of the nondelegation debate. Jed Handelsman Shugerman, Vesting, 74 Stan. L. Rev. (forthcoming 2022) (manuscript at 72), https://‌ssrn.com/‌abstract=3793213 [https://perma.cc/6UFF-7WKF]. The speed of the responses—and their sharp tone—may reflect the extent to which the nondelegation doctrine has become the pole star of the conservative legal movement’s project.

The critics’ arguments deserve thoughtful consideration and a careful response. We’re happy to supply both. To set the stage, recall that originalism entails a commitment to the principle that the Constitution’s meaning was fixed at ratification. 3 See Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 456 (2013) [hereinafter Solum, Originalism and Constitutional Construction]. Some originalists believe that accepting the possibility of early Republic liquidation—the proposition that acts of constitutional creativity in the early Republic can authoritatively resolve the best reading of a contested provision—does not conflict with the fixation thesis. See William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 4 (2019). Though the Constitution’s text does not directly address legislative delegations, supporters of the nondelegation doctrine generally claim that the Vesting Clause of Article I—“All legislative powers herein granted shall be vested in a Congress of the United States” 4 U.S. Const. art. I, § 1. —prohibits Congress from passing laws that delegate too much power or power of the wrong kind. 5 See Mortenson & Bagley, Delegation, supra note 1, at 280 nn.8–11 & 13, 290 nn.70–71 (citing arguments by nondelegation advocates).

Article I does not actually say that, of course. The nondelegation doctrine is an inference from the text and structure of the Constitution, and not a necessary one. 6 See John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939, 2019 (2011) (arguing that the Constitution allows for the executive and legislative branches to enact “very nearly” the same rules using different procedures); Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. Chi. L. Rev. 1721, 1762 (2002) [hereinafter Posner & Vermeule, Interring the Nondelegation Doctrine] (arguing that “nothing in the language or structure of the Constitution supports” the nondelegation doctrine). That’s why our critics lean so hard on history: To build a convincing case, they must show that the Founders collectively read that implication into the Constitution. More than that, they have to demonstrate that there was broad agreement, at least in principle, on the line that divided permissible from impermissible delegations, even in the absence of textual guidance.

If the Founders did hold such views, it shouldn’t be hard to show. The era is rich in primary sources: political tracts, polemical pamphlets, newspaper battles, correspondence, records of state ratifying conventions, and reports of congressional debates. Those sources contain tens of thousands of pages of sophisticated constitutional debates on issues ranging from implied powers to presidential removal to the scope of the commerce power. 7 See Julian Davis Mortenson, The Executive Power Clause, 168 U. Pa. L. Rev. 1269, 1278–79 (noting that “three major collections” of Founding-era materials alone contain “millions of words”). In the originalist telling, the nondelegation doctrine was understood to be an indispensable feature of the separation of powers. 8 See supra note 5 and accompanying text. The historical record should be littered with evidence of a shared commitment to something so foundational.

Yet the sources tell a different story. As we detailed in our article, late eighteenth-century Anglo-American law was awash in legislative delegations. Parliament delegated legislative powers to ministers, colonies, corporations, and the King; colonial legislatures delegated legislative powers to governors, municipalities, boards, and other state officials; the states delegated legislative powers to the Continental Congress; and the Continental Congress delegated legislative powers to territorial administrators. 9 See Mortenson & Bagley, Delegation, supra note 1, at 293–313.

Some of our critics believe that the new Constitution broke with this established practice. 10 See infra Part III. But if it did, it’s odd that its text does not specify new limits on delegation; that no one in the ratification process suggested it might be read to do so; and that vesting clauses in state constitutions with identically tripartite structures (and explicit separation-of-powers clauses) were understood to permit broad delegations. 11 See infra notes 81–84 and accompanying text. This evidentiary gap can’t be filled by invoking the Founders’ oft-repeated concerns about the consolidation of governmental power in one pair of hands. It simply does not follow that they believed that legal restraints on defeasible delegations were a necessary implication of the constitutional design. 12 Cf. Rodriguez v. United States, 480 U.S. 522, 525–26 (1987) (“[N]o legislation pursues its purposes at all costs.”).

Early federal practice, in fact, suggests the Founders harbored no such belief. The First Congress passed dozens of laws delegating wide discretion to the President, cabinet secretaries, federal judges, territorial governors, and tax officials. 13 See Chabot, supra note 1, at 112–53 (discussing the First Congress’s delegation of important questions). No meaningful nondelegation objection was raised to any of these laws 14 Mortenson & Bagley, Delegation, supra note 1, at 332–49. Professor Christine Chabot identifies one possible exception, suggesting that William Loughton Smith raised “a constitutional objection” to a motion by James Madison proposing the unbridled delegation of borrowing power—the quintessential “power of the purse” authority of the legislative branch—to George Washington. Chabot, supra note 1, at 116–17; see also David P. Currie, The Constitution in Congress: The Federalist Period 1789–1801, at 73 n.143 (1999) [hereinafter Currie, The Constitution in Congress] (noting that, in a “debate barely hinted at in the Annals” of Congress, “Smith doubted whether Congress could delegate its power to the President at all”). We read stenographer Thomas Lloyd’s notes of the speech differently; in Lloyd’s shorthand, Smith appears to describe Smith as raising a question for discussion rather than taking a position on the ultimate conclusion. Lloyd’s Notes, 19 May 1790, Debates in the House of Representatives, in 13 Documentary History of the First Federal Congress of the United States of America 1343, 1349 (Helen E. Veit, Charlene Bangs Bickford, Kenneth R. Bowling & William Charles diGiacomantonio eds., 1994) (“Congress vested with the power of borrowing money. The question is whether can delegate that power to President . . . . The words in the Constitution are express. The question, then, whether authorized to delegate such important power . . . . The question very important as constitutional point.”). Smith does suggest that the same uncertainty had affected the drafting of a post office bill earlier in the First Congress, but no one else in the discussion seems to agree—and Smith for his part appears never to have mentioned his question again over dozens of pages of ensuing discussion about whether the bill was wise policy. See id. at 1349–55. It’s fair to read Smith as evidence for the possibility that someone could reason their way toward a nondelegation limitation in the Constitution. But as discussed in the main text, the contemporaneous profusion of inventive and ungrounded arguments about what the Constitution “meant” is a wonder to behold. —and this at a time when legislators were inventing dubious constitutional arguments at the drop of a hat. 15 Cf. 8 Annals of Cong. 1732 (1798) (statement of Rep. Otis) (“The Constitution of this country . . . is upon all occasions introduced as a stumbling-block in the discussions of this House, and instead of forming any safe rule of conduct, it proves a mere cobweb—a mere jargon of political maxims, and is the foundation of sophisms in almost every debate.”); see also Currie, The Constitution in Congress, supra note 14, at 296 (“Congress and the executive resolved a breathtaking variety of constitutional issues . . . . After the relative honeymoon of the First Congress, debates became more partisan; one is less confident that many of the participants were dispassionately seeking to determine what the Constitution meant.”); Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era 8 (2018) (“[T]here was, in all manner of disputes, cause to press the Constitution into greater and greater politics, to constitutionalize politics ever more deeply.”); Jud Campbell, The Invention of First Amendment Federalism, 97 Tex. L. Rev. 517, 522 (2018) (noting that “[p]artisan political objectives” and “the evolutionary culture of English customary constitutionalism, where time and again new constitutional principles had emerged from prominent public controversies[,] . . . made it second nature for the Founders to argue for new constitutional rules”); infra note 159.

Our critics dismiss these laws for various reasons: This law was about foreign affairs or the territories, 16 See infra section VI.A.2. that law wasn’t important enough, 17 See infra section VI.A.3. this other law didn’t involve private rights. 18 See infra section VI.A.1. But the question is not whether creative twenty-first-century scholars can contrive distinctions that explain away the broad delegations in the record. It is whether they can supply evidence showing that the Founders thought these distinctions were relevant to a live constitutional question. On this front, our critics fall short: None of the delegations we identify were discussed, let alone defended, with reference to the distinctions that our critics now claim were widely understood to be constitutive features of the nondelegation doctrine.

As the 1790s wore on, a few Republicans—most prominently, James Madison and Albert Gallatin—on a few occasions voiced something sounding like the nondelegation doctrine. 19 See Mortenson & Bagley, Delegation, supra note 1, at 349–65. But their objections never carried the day and were derided as having been manufactured to bolster their opposition to Federalist legislation. 20 See id. at 362 (noting Gallatin’s objection to a law passed by Congress). The debates betray no shared commitment to the principle that some category of laws were beyond the constitutional pale. Even Madison’s rejected arguments suggest, at most, a nondelegation doctrine that was suspicious of delegations involving the siting of post roads and the raising of volunteer armies. 21 See id. at 349–56, 361–63. But such delegations would not run afoul of any of the various versions of the nondelegation doctrine that modern originalists espouse.

Originalism is not a forgiving discipline. “[I]t requires immersing oneself in the political and intellectual atmosphere of the time—somehow placing out of mind knowledge that we have which an earlier age did not, and putting on beliefs, attitudes, philosophies, prejudices and loyalties that are not those of our day.” 22 Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 856–57 (1989). In our view, our critics ought to be more cautious in assigning controversial political beliefs about the need for constitutional limits on legislative delegations onto a Founding generation that, at the moment of fixation, had yet to discern such a need. The originalist argument for nondelegation doctrine fails on its own terms.