abstract. In recent articles, a number of scholars have cast doubt on the originalist enterprise of reviving the nondelegation doctrine. In the most provocative of these, Julian Mortenson and Nicholas Bagley challenge the conventional wisdom that, as an originalist matter, Congress cannot delegate its legislative power. The question, they say, is not even close. The Founding generation recognized that power is nonexclusive, and so long as Congress did not “alienate” its power by giving up the ability to reclaim any exercise of power, it could delegate as broadly as it wanted to the Executive. In an article focusing on the direct-tax legislation of 1798, Nicholas Parrillo argues in this volume of the Yale Law Journal that although there may have been a nondelegation doctrine at the Founding, it appears to have allowed for broad discretion to regulate even private rights. And in a third article, Christine Kexel Chabot argues that early borrowing and patent legislation demonstrates that Congress routinely delegated important policy questions to the Executive.

This Feature rebuts these challenges to a revived, more robust nondelegation doctrine. It demonstrates that there was a nondelegation doctrine at the Founding. To be sure, the history is a bit messy, precluding any kind of categorical conclusion. But when fairly evaluated, there is almost no evidence unambiguously supporting the proposition that there was no nondelegation doctrine at the Founding, while there is significant evidence that the Founding generation believed Congress could not delegate its legislative power. As for the content of that doctrine, it appears that Congress could not, and did not, delegate discretion over “important subjects” to the Executive. What are the important policies that must be resolved by Congress is sometimes, of course, in the eye of the beholder. But at most, debates over delegation at the Founding were lower-order disputes over application of this principle, not higher-order disputes over its validity.

author. Ilan Wurman is Associate Professor of Law at the Sandra Day O’Connor College of Law at Arizona State University. Thanks to Ron Cass, Gary Lawson, Michael McConnell, and John Ohnesorge for early discussions and suggestions. I also profited greatly from conversations with Aaron Gordon, then a student at Yale Law School, and from Christopher Green’s social media, from which he posted numerous tidbits from various nondelegation debates in early Congresses. I owe a special thanks to the C. Boyden Gray Center for the Study of the Administrative State at George Mason for allowing me to present this paper at a nondelegation conference, and to the participants, including Jonathan Adler, Jack Beermann, Emily Bremer, Katherine Mims Crocker, Aaron Nielson, Nick Parrillo, Richard Pierce, Chris Walker, and John Yoo, for their helpful comments. Thanks also, of course, to the editors of the Yale Law Journal, whose comments and suggestions have greatly improved this piece.

Introduction

In a series of recent articles, scholars have cast doubt on originalist efforts to revive a robust nondelegation doctrine. In the most provocative of these,1 Julian Mortenson and Nicholas Bagley argue that there was no nondelegation doctrine at the Founding at all. According to their argument, the Founders agreed that although the legislative branch could not alienate its power—it could not give away its power for good—the legislative branch could delegate its power, so long as it had the ultimate authority to reclaim any legislative power that it had so delegated.2 Additionally, the Founding generation recognized governmental power to be “nonexclusive” to one particular branch; so long as Congress has authorized the Executive to take some action, that action could be characterized as executive and therefore permissible for the Executive to undertake.3 Turning away from Founding-era thought to legislative practice after 1789, Mortenson and Bagley argue that the legislation of the First Congress demonstrates that the Founding generation had no problem delegating vast, presumably legislative powers to the Executive.4 Summarizing their findings, they write, “There was no nondelegation doctrine at the Founding, and the question isn’t close.”5

Nicholas Parrillo, in the pages of this volume, more narrowly argues that there may have been a nondelegation doctrine at the Founding but that it cannot have been particularly robust. Parrillo exhaustively analyzes the direct-tax legislation of 1798. It reveals, he argues, that Congress delegated discretion over private rights.6 In a different article, Christine Kexel Chabot argues that, although there was a nondelegation doctrine at the Founding, early borrowing and patent legislation suggests that Congress often delegated important policy questions to the Executive.7

This Feature systematically compares the available evidence both for and against a nondelegation doctrine and responds to these recent challenges to a revived, more robust doctrine. It concludes that Mortenson and Bagley have not come close to demonstrating their claim that there was no nondelegation doctrine at the Founding. Although the history is messy, there is significant evidence that the Founding generation adhered to a nondelegation doctrine, and little evidence that clearly supports the proposition that the Founding generation believed that Congress could freely delegate its legislative power. As for the content of that doctrine, none of the statutory delegations examined by Mortenson and Bagley, Parrillo, and Chabot necessarily refute the proposition that Congress cannot delegate decisions involving private rights. Certainly none refutes the proposition that Congress must decide all “important subjects,” leaving only matters of administrative detail to the Executive.8

This Feature proceeds in five parts. Part I situates this Feature within the existing debates over originalism and nondelegation. In an important sense, the contributions of Mortenson and Bagley, Chabot, and Parrillo to this literature represent a recognition that originalist work is possible—that we can make valid claims about some historical materials and can answer at least some historical questions of importance (even though there are disagreements over that history). As for the nondelegation literature, the examinations of many early statutes suggest that a revived nondelegation doctrine does not require invalidating the entire modern administrative state, a proposition supported by the concept of nonexclusive powers. This Part reviews some of the earlier literature and the current discussion among Supreme Court Justices to suggest how we might improve upon them. Finally, much of the earlier literature focuses on constitutional structure, the meaning of the term “legislative power,” and the normative and theoretical reasons to have a nondelegation doctrine. The recent contributions force scholars to confront another, perhaps more direct, source of evidence of original meaning: the actual statements and practices of those first operating under the new Federal Constitution.

Part II begins the argument in earnest and canvasses the affirmative evidence in favor of a nondelegation doctrine. When the evidence is canvassed, it paints a rather impressive picture of a nondelegation doctrine at the Founding. The evidentiary support comes first in the shape of explicit statements and arguments. Section II.A examines the explicit arguments in favor of a nondelegation doctrine made in the debates over a nondelegation amendment, the establishment of post roads, the Alien Friends Act, the power to raise armies, and more, largely in the first decade following ratification.9 In their article, Mortenson and Bagley claim that James Madison’s view of nondelegation was idiosyncratic and the result of motivated reasoning.10 Not only was Madison consistent in his view, but many others in the Founding generation appear to have shared it.11

Section II.B then discusses John Locke, on whom the Founders placed great reliance and whose writing supports a nondelegation doctrine.12 Mortenson and Bagley argue that Locke should be discounted because he distinguished between delegation and alienation; he had no problem with delegating power, they argue, so long as the legislative body did not permanently alienate its power so as to be incapable of reclaiming it. Even if Locke really distinguished between delegation and alienation (itself not an entirely clear matter), the affirmative evidence in favor of the nondelegation doctrine shows that when the Founding generation raised nondelegation concerns, they did so in terms of alienation or “transfers” of power—the same words Locke used.13

This evidence is quite strong on its own terms, and it becomes stronger in view of the innumerable statements from the Founding period that implicitly endorse a nondelegation doctrine, some of which are canvassed in Section II.C. These statements come in at least two varieties. First are statements about the institutions the Constitution creates. Time and again, the Constitution’s Framers and ratifiers argued that each department was structured in a particular way so that it could exercise its particular function well.14 Each and every statement to this effect contained an entailment, or at least an implicature:15 that the legislative power must be exercised by the legislative branch, that the executive power must be exercised by the executive branch, and that the judicial power must be exercised by the judicial branch, to obtain the benefits of this institutional structure. The second variety of statements includes those advocating a separation of powers generally and opposing a combination of powers.16 Whenever such a statement was made, it also contained an entailment or implicature to the effect that the branches therefore could not delegate their respective powers to another branch.

Against this positive evidence of a nondelegation doctrine, none of the recent articles challenging the doctrine has uncovered relevant or unambiguous statements to the contrary. As shown in Part III, Mortenson and Bagley rely on dozens of statements approving the delegation of legislative power under the British constitution, even citing the notorious and detested Statute of Proclamations twice.17 But these are inapposite. Parliament was not limited under the British constitution; that constitution was merely the institutions of governance that Parliament happened to create.18 These examples simply do not answer the question of whether Congress can delegate the legislative power assigned to it in a written constitution intended to bind the legislative department as well as the other departments of the national government. They also rely on practices under the Articles of Confederation, as though there were a consistent line of intellectual thinking from the Statute of Proclamations to John Locke to eighteenth-century British practice to the Articles of Confederation all the way through the American Founding.19 Beyond these inapposite statements, a careful reading of Mortenson and Bagley’s article uncovers probably only one statement—and a vague one at that—to the effect that there are no limits on what Congress can delegate to the Executive.20 Every other representative or public figure on the opposite side of a nondelegation argument seems merely to have believed that there was no nondelegation problem with the particular statute at hand.

Mortenson and Bagley also rely on implications from other strains of the Founders’ thought. They argue that the Founding generation understood all government power to be nonexclusive to any particular branch.21 But Mortenson and Bagley misunderstand the nature of the Founding-era discussions of nonexclusive powers. The Founding generation did, of course, recognize that some governmental power was not exclusive to any particular branch. Chief Justice John Marshall made the point in an early prominent nondelegation case,22 and it is a widely shared understanding that the legislative veto power exercised in INS v. Chadha23 could be characterized as legislative, executive, or judicial power.24 From this widely accepted notion, Mortenson and Bagley draw a conclusion for which there does not appear to be actual evidence: that because some power is nonexclusive, all governmental power is nonexclusive.25 Part IV shows that the Founding generation believed there to be both nonexclusive and exclusive powers.

Part V examines the legislation of the First Congress, and particularly the borrowing legislation described by Chabot. It also examines the subsequent 1798 direct-tax legislation discussed by Parrillo. Most of this legislation and the other legislation from early Congresses is consistent with modern scholarly accounts of nondelegation. Most of these early laws were not nearly as broad as Mortenson and Bagley, Parrillo, or Chabot suggest. Others did not delegate authority that any formalist would recognize as “exclusively legislative,” that is, the kind of legislative power that it is impermissible for Congress to delegate. Many of these delegations involved nonexclusive, or shared, power: power that the legislature could and historically did exercise (for example, resolving claims against the government), but which the other departments of government could also exercise. The direct-tax legislation of 1798 is the strongest evidence in favor of a weak nondelegation doctrine, but even there Congress resolved all the controversial political questions. Overall,the picture the Founding-era history paints is one of a nondelegation doctrine whereby Congress could not delegate to the Executive decisions over “important subjects,” although there were occasionally lower-order disagreements over what was important and what was a matter of mere detail. But the boldest claim of some of the recent scholarship—that there was no nondelegation doctrine at the Founding, and that the question is not close—collapses upon examination.