A Rebuttal to 'Delegation at the Founding'

Abstract

In their recent article “Delegation at the Founding,” Julian Mortenson and Nicholas Bagley take aim at modern originalists who argue on historical grounds for reviving the long-dormant Nondelegation Doctrine—the constitutional principle that Congress may not delegate authority so broad as to be “legislative” in nature. Mortenson and Bagley reject such originalist arguments, asserting that, in fact, the Nondelegation Doctrine has no basis in the Constitution as originally understood. On the contrary, the two authors claim, “the Constitution at the Founding contained no ... prohibition on delegations of legislative power” so long as “the legislature [did] not irrevocably transfer ... its ultimate authority,” and that any “rulemaking pursuant to statutory authorization,” no matter how broad the authorization, “was an exercise of executive Power.” As one of the less illustrious targets of Mortenson and Bagley’s critique (and of several other recent articles taking similar positions), I beg to differ on both points. In a prior article, Nondelegation, 12 NYU J.L. & Liberty 718 (2019), I argued that, as a matter of original meaning, the Nondelegation Doctrine has a firm constitutional foundation; congressional “grants of rulemaking power … very often constitute delegations of legislative authority, and such delegations violate the Constitution.” Despite one hundred ten pages of their best efforts, Mortenson and Bagley fail to call these conclusions into doubt; if anything, their recent paper should leave readers even more convinced of the Nondelegation Doctrine’s constitutional bona fides. Here, I explain why—and in the process, respond to other recent scholarship that has similarly questioned the historical case for nondelegation.