The Non-Delegation Doctrine: (a) Completely Dead; or (b) Only “Mostly Dead” and Subject to Imminent Revival?

This week, the Columbia Law Review published an article title “Delegation at the Founding,” wherein its authors, Julian Davis Mortenson and Nicholas Bagley, argue that the “non-delegation doctrine” – the principle that Congress cannot delegate its legislative powers to others – was not historically justified at the founding nor any time after. The authors also gave an interview with Slate on the topic which is both more accessible and concerned with contemporary political/judicial reality.

Whatever you label it, I personally agree with the wisdom of limiting Congress’ ability to delegate lawmaking authority to any other body/office. It is important that the constituent members of a body charged with legislating remain politically accountable to their constituents for legislative acts. Legislative officials – perennially susceptible to criticism or electoral challenge – will always be tempted to simply hand off “hard questions” to the executive as a way of exercising “political cover” and avoiding flack. However, this process inevitably leads to wildly erratic legal regime changes every four-to-eight years as piles of paper with the words “executive order” stamped at the top are replaced with new wholly contradictory piles of paper. Meanwhile, the hard work of building an actual articulated consensus is kicked further down the road while the men and women charged with this duty redouble their efforts at staying in office through fundraising, gerrymandering, etc.

However, this article argues whatever the “wisdom” of my personal opinion/position on the non-delegation doctrine, it is only that; i.e. potentially good policy but not actual law rooted in the text or history of the Constitution. I am only an amateur scholar of Anglo-American legal history but I think there is much merit to this article’s central premises. To wit: (a) before the enactment of the Constitution, it was routine for Anglo sovereign bodies (including the various colony legislature as well as the Crown / Parliament) to delegate “lawmaking” authority to local or specialized “ministers” / “magistrates;” (b) immediately after enactment of the Constitution, this practice continued in our young nation without observable interruption; and (c) the textual evidence that the constitutional settlement, through text, structure, or otherwise, mandates a change of this system is very thin. Further, that “non-delegation” was only in judicial vogue one year during the New Deal is also very telling. Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315, 322 (2000) (“We might say that the conventional [non-delegation] doctrine has had one good year, and 211 bad ones (and counting).”). Thus, on balance, it seems very unlikely that the founders intended the vesting clauses to completely overwrite this historical consensus and practice, much less to do so extremely quietly and without discernible success.

In sum, I don’t know that the issue is “settled” one way or another but I’d recommend that any lawyer friends interested in constitutional law give this interview and/or article a read. Its honest scholarship and the subject matter is increasingly relevant, as the administrative state grows ever larger and the several States’ judiciaries make clear they are much less shy than their federal counterparts for both obvious and non-obvious reasons. Understanding the contours of this inevitable battleground will be useful, especially if it is true that “[f]or the first time in modern history, a working majority on the Supreme Court may be poised to give the nondelegation doctrine real teeth.”

Regards,

SK