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Delegation at the Founding University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 2021 Delegation at the Founding Julian Davis Mortenson University of Michigan Law School, [email protected] Nicholas Bagley University of Michigan Law Schooll, [email protected] Available at: https://repository.law.umich.edu/articles/2200 Follow this and additional works at: https://repository.law.umich.edu/articles Part of the Constitutional Law Commons, and the Legal History Commons Recommended Citation Mortenson, Julian Davis and Nicholas Bagley. "Delegation at the Founding." Columbia Law Review 121, no. 2 (2021): 277-368. This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. DELEGATION AT THE FOUNDING Julian Davis Mortenson & Nicholas Bagley* 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 char- acterized 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. INTRODUCTION ......................................................................................... 278 I. THE RISE AND FALL AND RISE AGAIN OF THE MODERN NONDELEGATION DOCTRINE .............................................................. 282 A. Rise and Fall ................................................................................ 282 B. And Rise Again ............................................................................ 285 C. Gundy v. United States ................................................................... 287 * 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. 277 278 COLUMBIA LAW REVIEW [Vol. 121:277 II. BEFORE 1789 ......................................................................................... 289 A. Methodology ............................................................................... 291 B. Legislative Power Could Be Delegated ....................................... 293 1. The Theory of Legislative Delegations Before 1789 ........... 293 2. The Practice of Legislative Delegations Before 1789 .......... 301 3. Hints of an Anti-Alienation Principle .................................. 307 C. Rulemaking Pursuant to Statutory Authorization Was an Exercise of Executive Power ....................................................... 313 1. The Legislative Act of Passing Statutes Could Accurately Be Described as an Exercise of Executive Power ................ 316 2. The Legislative Act of Treatymaking Could Accurately Be Described as an Exercise of Executive Power ................ 324 III. AFTER 1789 .......................................................................................... 332 A. Delegations by the First Congress .............................................. 332 1. The Police Power in Federal Lands ..................................... 334 2. Commercial Regulations ...................................................... 338 3. Commerce and Other Interactions with Native Americans ............................................................................. 340 4. Social Welfare and Entitlement Benefits ............................. 342 5. Finance and Budget ............................................................. 344 6. Tax Assessment and Enforcement ....................................... 345 7. Citizenship ............................................................................ 347 8. Powers Arguably Within Another Branch’s Constitutional “Space” .................................................................................. 348 B. The Post Roads Debate ............................................................... 349 C. The Pattern in Later Congresses ................................................ 356 CONCLUSION ............................................................................................. 366 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 Its reinvigoration would mark a radical break with consti- tutional 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 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).”). 2021] DELEGATION AT THE FOUNDING 279 application of a nondelegation doctrine is necessary to bring “a second coming of the Constitution of liberty,”2 one consistent with the Constitution’s original public meaning.3 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 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 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 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 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 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.”). 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.”). 4. 139 S. Ct. 2116, 2131–48 (2019) (Gorsuch, J., dissenting). 5. Id. at 2131 (Alito, J., concurring in the judgment). 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
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