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.
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,”
one consistent with the Constitution’s original public meaning.
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.
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.”
Although Justice Kavanaugh didn’t participate in Gundy, he issued a short opinion some months later suggesting his openness to reviving the nondelegation doctrine.
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.”
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.
There was no nondelegation doctrine if legislative power is defined as “the power to make rules that b[i]nd or constrain subjects.”
There was no nondelegation doctrine if legislative power is defined as “the authority to make rules for the governance of society.”
And there was no nondelegation doctrine if legislative power is defined as the “discretion . . . to decide what conduct would be lawful or unlawful.”
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.
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.”
The executive power, however, was simply the authority to execute the laws—an empty vessel for Congress to fill.
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.
As we demonstrate in Part II, much of the confusion arises because—contrary to our modern turn of mind
—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.
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.
The Founders would thus have said that agencies wield legislative power to the extent they adopt rules that Congress could have enacted as legislation.
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.
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.
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.
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.
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.