Examining Delegation at the Founding

In 2019 it appeared the nondelegation doctrine was poised for a revival. In Gundy v. United States, 139 S. Ct. 2116 (2019), the Supreme Court turned away a nondelegation challenge to portions of the Sexual Offender Registration Act (SORNA), but just barely. Justice Gorsuch dissented, joined by Justice Thomas and Chief Justice Roberts, arguing that the “intelligible principle” test, as it has evolved, “has no basis in the original meaning of the Constitution, in history, or even in the decision from which it was plucked.” Id. at 2139. Justice Alito concurred in the judgment of the Court, but wrote separately to indicate his willingness to “reconsider” the Court’s nondelegation jurisprudence. Id. at 2131. And Justice Kavanaugh, who could not participate in Gundy, later indicated the question “may warrant further consideration in future cases.” See Paul v. United States, 140 S. Ct. 342 (2019)

The operating assumption of Justice Gorsuch’s Gundy dissent was that the Constitution, as written, bars Congress from delegating legislative power to the executive branch. Echoing originalist scholarship, Justice Gorsuch argued that the Constitution’s separation-of-powers structure would make “no sense” were Congress allows to “pass off its legislative power to the executive branch,” and that it is necessary for the federal judiciary to “call foul when [such] constitutional lines are crossed.” Gundy, 139 S. Ct at 2134-35.

In the wake of Gundy there has been an outpouring of scholarship on the nondelegation doctrine, including whether the doctrine is properly grounded in the original public meaning or original understanding of the Constitution’s text and design. A substantial number of articles have challenged the conventional account, arguing that there is little evidence from the founding period that the Constitution constrains delegation, raising questions as to whether the nondelegation doctrine can be defended on originalist grounds. (Whether or not originalism is the proper measure of what the Constitution requires is, of course, a separate question.)

Delegation at the Founding, by University of Michigan law professors Julian Davis Mortenson and Nicholas Bagley, 121 Colum. L. Rev. 277 (2021), is among the most significant articles to challenge the conventional originalist account of nondelegation. It has provoked substantial academic discussion and received the Section’s 2022 Award for Scholarship in Administrative Law.

Mortenson and Bagley marshal an extensive array of historical support for the claim that “there was no nondelegation doctrine” when the Constitution was adopted or in the founding period. Id. at 279. As they see it, “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.” This was so, in part, because “the Founders thought of the separation of powers in nonexclusive and relational terms.” Id. at 281. Mortenson and Bagley argue at length that the Founders had no problem with legislatures authorizing the executive branch to “execute” the law by, among other things, drafting and issuing rules to proscribe or constrain private conduct.

Mortenson and Bagley also survey the legislative practices immediately after 1789 to further support their thesis. While they do not identify any examples of legislative delegations of broad regulatory power of the sort that concern critics of the administrative state today, they detail numerous examples of Congress delegating broad discretionary authority to the executive branch, across a wide array of subjects, and without engendering a peep of opposition advanced on nondelegation grounds. If there had been an implicit bar on the delegation of legislative authority, they contend, surely someone would have raised such concerns about the broad delegation of power over the issuance of patents, commerce with Native American tribes, or rules governing the federal territories. Further, when nondelegation objections were raised to legislation authorizing post roads, they were rejected. Thus, Mortenson and Bagley conclude: “The nondelegation doctrine simply was not an accepted feature of the constitutional fabric at the time of ratification. Its adoption long after the Founding was an act of constitutional creativity.” Id. at 332.

Mortenson and Bagley’s account presents a challenge for originalist scholars and jurists seeking to demonstrate the nondelegation doctrine’s founding-era pedigree. “The nondelegation doctrine has nothing to do with the Constitution as it was originally understood,” Mortenson and Bagley write. “You can be an originalist or you can be committed to the nondelegation doctrine. But you can’t be both.” Id. at 282.

Delegation at the Founding has already prompted a slew of responses from originalist scholars. Mortenson and Bagley have just published a reply, which is unlikely to be the last word on this question. See Mortenson & Bagley, Delegation at the Founding: A Response to the Critics, 122 Colum. L. Rev. 2323 (2022).

As the academic debate over nondelegation has heated up, the justices’ fervor for revisiting the doctrine appears to have cooled. Post-Gundy, there has been little evidence that such a revolution is in the works. While the Court has construed delegations narrowly, and rejected claims that broad delegations exist—-most prominently, in West Virginia v. EPA, 152 S. Ct. 2587 (2022)—-there has been no sustained post-Gundy effort to insist on a reinvigorated or robust nondelegation doctrine.

There are many possible explanations for this apparent turn of events. The Court may be waiting for the proper case, or perhaps the votes needed to revamp or replace the “intelligible principle” test remain elusive. Quite possibly, however, the justices are aware of the academic debate over the nondelegation doctrine’s originalist provenance, and are waiting to see if Mortenson and Bagley’s challenge to the conventional originalist account is adequately answered.