The Dead Chicken That Will Be Used to Attack the Regulatory State

This is a great piece by Julis Davis Mortsensen and Nicholas Bagley about how utterly absurd it is to claim that the constitution, as originally understood, forbids legislative delegations to the executive:

Early Congresses followed suit. Though they often issued instructions in painstaking detail, they also delegated in sweeping terms. These delegations were neither ancillary nor of secondary importance. They were vital to the establishment of a new country—to shore up its finances, regulate its industry, govern its territories, secure its revenue, and guard against internal and external threats.

Here are a few examples, all drawn from the First Congress, which sat from 1789 to 1791:

• Congress readopted the Northwest Ordinance, which gave to the appointed governor of the Northwest Territory and three federal judges the power to issue the territory’s entire civil and criminal code “as may be necessary and best suited to the circumstances of the district,” with no other guidance whatsoever.
• To foster industrial innovation, Congress adopted a patent law giving the secretary of state, the secretary of war, and the attorney general the power to grant patents to new inventions whenever they “deem the invention or discovery sufficiently useful or important.”
• Congress forbade trade or intercourse with American Indian tribes without a license—and required all licensees to be “governed … by such rules and regulations as the President shall prescribe.”

All of these laws, and others we discuss in the paper, empowered executive officials to adopt rules governing private conduct without meaningful guidance from Congress. And yet, in the nearly 2,000 pages of recorded debate from the First Congress, none spurred a nondelegation objection. If there was a nondelegation doctrine of any stripe—let alone a broadly shared and uncontroversial understanding—it’s inconceivable that no one would have mentioned it.

Originalists dismiss or disregard all of this. But remember—if they’re arguing that courts should strike down federal statutes, it’s their burden to show that the Founders broadly shared a deeply embedded understanding that broad delegations were impermissible. Beyond the reference to Locke, what evidence do they have?

For all intents and purposes, the “originalist” case for the nondelegation doctrine boils down to an isolated passaged from Locke’s Second Treatise, which was written about a completely different form of government. There’s nothing.

So, to review:

• Nondelegation doctrine is not found anywhere in the text of the Constitution.
• Nobody involved with the framing or ratification of the Constitution thought that it forbade legislative delegations to the executive, which have been ubiquitous since the first Congress, as well as at the state level, peer liberal democracies, etc. etc.
• The doctrinal support for nondelegation doctrine literally consists of two cases dealing with an extremely unusual statute that was due to expire later that year anyway decided in a 5 month span in 1935. The republic has done without it for the remaining 232 and 7/12 years.
• Attempts to revive this dead chicken would be obviously unworkable as legal doctrine — which is why the doctrine died with the NIRA — and in practice represent nothing more than reactionary judges wanting to throw out regulations they don’t like.

None of which will stop the Trump Court from using it to attack the next Democratic administration extensively, of course, but the doctrine is should remain deader than Dillinger.