On Thursday, the Columbia Law Review published one of the most important and topical scholarly articles in recent memory, “Delegation at the Founding.” Its authors, Julian Davis Mortenson and Nicholas Bagley, put forth a sweeping argument: They assert that an ascendant legal theory championed by conservative originalists has no actual basis in history. That theory, called the nondelegation doctrine, holds that the Constitution puts strict limits on Congress’ ability to let the executive branch set rules and regulations. Congress, for instance, could not direct the Environmental Protection Agency to set air quality standards that “protect public health,” and let the agency decide what limits on pollution are necessary to meet that goal. Nondelegation doctrine has enormous consequences for the federal government’s ability to function, since Congress typically sets broad goals and directs agencies to figure out how to achieve them. The theory is supported by a majority of the current Supreme Court; in 2019, Justice Neil Gorsuch signaled his eagerness to apply the doctrine, and at least four other conservative justices have joined his crusade.
Gorsuch and his allies in academia insist that the men who wrote the Constitution believed in the nondelegation doctrine, giving the theory an originalist pedigree. Yet Mortenson and Bagley, both law professors at the University of Michigan and former Supreme Court clerks, have painstakingly debunked originalists’ claims of historical support for the doctrine. The publication of their article presents a grave challenge to conservative originalists like Gorsuch who purport to follow the evidence even when it leads to an outcome that clashes with their political preferences. As Mortenson and Bagley put it: “You can be an originalist or you can be committed to the nondelegation doctrine. But you can’t be both.”
On Thursday, I spoke with the authors about their paper and the response it has already provoked among academics with near-dogmatic faith in the doctrine they debunk. Our conversation has been edited for length and clarity.
Mark Joseph Stern: What is the nondelegation doctrine?
Julian Davis Mortenson: Nondelegation is a judicially created doctrine that has had exactly one year of actual existence, 1935, over the 2½ centuries of the American republic. It says, in essence, that only Congress can make rules that govern private conduct, and all administrative agencies can do is apply the rules and maybe fill in some small details about the rules in the course of doing their work.
What happened in 1935?
Mortenson: The Supreme Court was very hostile to the New Deal, to economic interventionism. And it issued two opinions concluding that Congress had given the president too much discretion without giving him enough guidance. Those decisions happen, and then the doctrine is gone for many years.
Nicholas Bagley: It’s pretty much dormant until the 1980s and 1990s, when the conservative legal establishment starts to poke around for doctrines that might be able to restrain the federal government at a time when they felt it was too big, too powerful, and doing too much at the states’ expense. Conservative scholars glom onto nondelegation and start pushing for its reinvigoration in the courts. The Supreme Court slapped that down in 2001 in a unanimous decision written by none other than Justice [Antonin] Scalia. He said: Look, we’re not going to play this game. There’s no principled way for a court to draw these distinctions. We’re going to trust Congress to take care of protecting its own prerogatives.
At the same time, Justice [Clarence] Thomas writes separately to say: I’m open to reviving the doctrine. Start making an argument to me based in originalist materials that might allow me to get to that result. So originalist scholars start to build an argument. They write long law review articles and books that give the theory a patina of historical credentials. That was new, because until then, nondelegation was not primarily a claim about what the Framers believed in. It was a claim about how we ought to properly structure our government today—we want the legislature to make the important decisions, not beady-eyed bureaucrats.
You spent an enormous amount of time reviewing these originalist theories and assessing them in light of tens of thousands of pages of historical evidence. What did you find?
Bagley: When you talk about the founding era, there’s an awful lot to draw on because founders talked about their new Constitution all the time. If nondelegation was a thing, you should expect to find direct evidence of it. You’d expect it to arise in debates over laws that empower the president to act without much guidance from Congress. And when you look at those debates, it never crops up. It never shows up at all. And when you look at the practice before ratification, the founders delegated power all the time. It’s not a surprise that when they formed this new Constitution, they continued that pattern. If you take a hard look at the evidence people claim for the nondelegation doctrine, it falls apart in your hands. As a matter of historical inference, it can’t stand. History is not a game. It’s not infinitely flexible. You can’t read into it whatever you want.
Scholars often look to practice at the founding to determine the meaning of the Constitution. What did you learn about delegation in this period?
Mortenson: Delegation was deeply embedded in the operating system of governance throughout the founding period and throughout the 18th century. There is pervasive delegation in every direction throughout Anglo-American governance. The standard move for nondelegation theorists, faced with this avalanche of evidence that this is how the founders governed, is to say: Ah, the Constitution changed everything. The fact that it has “vesting clauses,” which vest power in the different branches of government, changed everything. If that were true, you’d think the founders might have said so at some point during the writing and ratification of the Constitution, which had highly learned debates about its meaning. But they didn’t! The story of radical discontinuity just doesn’t add up.
Proponents of the theory often claim to have James Madison on their side. Why?
Bagley: The best evidence originalists have mustered is a debate in the second Congress over the location of post roads. At first, Congress thought, let’s specify every single town that these roads will run through, because we want them in places that are important politically and financially. Then a proposal was put on the floor to say, let’s not do this ourselves—let’s give this to the president. Several members of Congress, including James Madison, object; Madison says the proposal would be unconstitutional. The other members laugh at them and say, you think this is somehow unconstitutional? You’re making up an argument because you want to retain control over the roads! In the end, Congress retains the authority over the post roads—but delegates additional authority to the president to create new post roads at his discretion. That’s exactly what Madison claimed was unconstitutional!
No originalist has proposed reviving a doctrine like the one they think they find in the second Congress. It doesn’t align with any of the extant theories about what a nondelegation doctrine would look like. If you assume that the nondelegation doctrine would preclude the president from doing something as banal as choosing the location of post roads, you basically are consigning the entire federal government to the rubbish heap. So the best originalist evidence for nondelegation is based on opportunistic arguments roundly rejected by the very coalition that, originalists claim, universally believed in the existence of this doctrine.
Mortenson: Originalists’ core piece of evidence is a set of losing claims invented more or less on the spot by a minority of one house of Congress that is completely at odds with the basis of the theory they’re advocating today. It’s all reverse-gerrymandered to pretend that overwhelming evidence to the contrary can be explained away if you just dance your feet fast enough.
Drafts of your article have been circulating for some time now. How have originalist proponents of the doctrine responded to it?
Mortenson: The retreat has been to claims about the necessary implications of structure and deep values that you can glean if you press your forehead against the text of the Constitution. It’s just making stuff up and calling it constitutional law. These are policy claims. And they’re shockingly similar to the arguments for unwritten rights in the Constitution that conservative originalists have derided for decades. When those arguments about structure and values and penumbras and emanations are made in service of abortion and LGBTQ equality, they are derided by originalists as contemptuous of democracy. For decades I’ve been told, “Keep your policy claims out of our Constitution.” I don’t see why the shoe doesn’t go on both feet.
Bagley: The nondelegation doctrine is at the heart of the conservative legal movement’s reform agenda. To the extent that it’s unavailable given their methodological commitments, that’s a real problem. The public responses have been to deny the force of the historical evidence that we supply, to insist that the historical record says something it doesn’t. I don’t find these historical responses persuasive. I’m struck by how thin they seem to me. And I’m struck by how otherwise smart people can endorse them. If you want to tell me it’s better to have this rule, fine. But you’re making a claim about the living Constitution as it evolves to deal with certain circumstances.
Do you have any hope that originalist judges like Gorsuch will read your paper and change their mind?
Mortenson: I have hope. I read Justice Gorsuch as very earnest and thoughtful. I think our research is so overwhelming that he might be willing to listen.
Bagley: [Pause.] When I clerked for Justice Stevens, he would circulate an opinion or a dissent and say, “You know, Nick, I think we’re going to persuade some people with this one.” Then he’d circulate it and he would get zero votes. I admired the optimism.