Is ‘Most of Government’ Unconstitutional?

It’s one of the most exciting possibilities in constitutional law right now: Many conservatives are clamoring to revive the long-dormant “nondelegation” doctrine, which liberal Supreme Court justice Elena Kagan has warned could invalidate “most of [the federal] Government.”

In essence, the doctrine holds that since the Constitution vests “all legislative Powers” in Congress, it is unconstitutional for Congress to turn those powers over to the executive branch. Congress may not, in other words, simply direct federal agencies to make major policy decisions themselves, the way it does now for a host of economic and environmental regulations. The courts must step in, police the separation of powers, and stop such abuses.

Last year, in Gundy v. United States, the conservative justices strongly suggested that they’d be willing to revive the doctrine in a future case, with Justice Neil Gorsuch spelling out the argument for such a move in detail. But a new paper from law professors Julian Davis Mortenson and Nicholas Bagley tries to slam on the brakes, offering an originalist argument against nondelegation.

Let’s take a look at each side’s evidence.

The Case against Delegation

I’ll rely primarily on Gorsuch’s Gundy dissent here because it already has the backing of much of the Supreme Court. Justices John Roberts and Clarence Thomas joined it, and Justice Samuel Alito expressed openness to joining Gorsuch to revive nondelegation in the future. (He didn’t think Gundy itself was an appropriate vehicle for making such a dramatic change.) The big question mark was Justice Brett Kavanaugh, who did not participate in the case. But Kavanaugh soon thereafter called Gorsuch’s dissent “thoughtful” and said it “raised important points that may warrant further consideration in future cases.” The reasoning laid out in Gorsuch’s opinion is almost certainly the reasoning the Court would use to fully implement the doctrine, and thus the reasoning critics must refute.

At the heart of the nondelegation doctrine is a point about the structure of the Constitution, and Gorsuch spends some time driving this home. As everyone learns in introductory civics, there are three branches of government that perform different functions and keep one another in check, because the Founders feared concentrating too much power in one branch. To take just one quote from James Madison, “there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.”

But the Constitution doesn’t explicitly say that branches of the government can’t delegate their powers to other parties when they deem it convenient and reasonable to do so, so this overarching idea gets us only so far. So Gorsuch also points to sources showing that the concept of the nondelegation doctrine has been with us a very long time — though, admittedly and importantly, direct, on-point quotations from the American Founders themselves are lacking.

The philosopher John Locke, who loomed large in the Founders’ thinking, had this to say in the second of his Two Treatises of Government, published in 1689:

And once the Constitution was in place, it didn’t take too long for the Supreme Court to address this issue. In 1825’s Wayman v. Southard, the Court took it as a given that Congress could not “delegate to the courts or to any other tribunals powers which are strictly and exclusively legislative,” but added that “Congress may certainly delegate to others powers which the legislature may rightfully exercise itself.” It noted that an exact line had not yet been drawn between “important subjects which must be entirely regulated by the legislature itself” and “those of less interest in which a general provision may be made and power given to those who are to act under such general provisions to fill up the details.”

The Wayman case, and Gorsuch’s reliance on it, is important for a reason besides providing historical support for the longstanding existence of the doctrine: It places a limit on what the conservatives are trying to do here. They are not saying Congress may never leave any policy parameter to the discretion of the executive branch. Instead, they are making a distinction between the major provisions of a policy — especially, Gorsuch makes clear elsewhere, those that regulate the conduct of private individuals and are not related to the inherent powers of the president, such as the power to conduct foreign policy — and the “details.” Of course, this distinction creates its own problems, as it will be difficult for courts to create and enforce an objective litmus test for separating the two.

But back to the Supreme Court’s history of nondelegation jurisprudence. Until the New Deal era, the administrative state was relatively small, and while the Court rearticulated the nondelegation doctrine several times after Wayman, it never actually struck down any laws as running afoul of it. Two laws did bite the dust in 1935, but then activity mysteriously ceased again, despite the explosive growth of the administrative state. So what happened to that “fill up the details” standard?

Essentially, in the wake of the 1937 “switch in time” that prevented FDR’s court-packing scheme, the Court ignored the old nondelegation doctrine in favor of a line from a 1928 decision that might have been intended to restate the usual rule rather than rewrite it: “If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform, such legislative action is not a forbidden delegation of legislative power.” Providing an “intelligible principle” is a much lower bar to clear than is providing everything except the “details” on subjects of “less interest,” and a Court eager to sign off on sweeping legislation liked the former test better.

Thus did we lose sight of an important constitutional principle that is fundamental to the very design of our government, has roots in the philosophy that guided the Founders, and was endorsed by the Supreme Court in our country’s first half-century of existence — or so Gorsuch’s argument goes.

The Rejoinder

The above narrative has long had its critics. And in their new paper, Mortenson and Bagley consolidate earlier counterpoints and provide some novel arguments of their own.

For one thing, they write, the distinction between “legislative” and “executive” is not as sharp as some would like to think, and the Founders, “awash in centuries of debates about the nature of political representation, the criteria of legislative legitimacy, and the locus of sovereignty,” acknowledged the difficulty of trying to insist they are entirely separate. “The boundaries between the Executive, Legislative & Judiciary powers,” Madison said, “though in general so strongly marked in themselves, consist in many instances of mere shades of difference.” The difference between legislative and executive functions created especially tedious debates when it came to the project of making treaties.

One might think this alleged conceptual mushiness is hard to square with the fact that, in the end, the three branches got one set of powers each, but Mortenson and Bagley offer a way of reconciling the contradiction: In the Founders’ ultimate view, the executive power was “simply the power to execute the laws — an empty vessel for Congress to fill.” The executive executes the laws even when following instructions to write legislation-style rules, and the legislature legislates even when its laws merely instruct someone else to formulate a policy. The authors provide numerous examples of Founding-era commentators, including Benjamin Franklin, contemplating the delegation of legislative power in various ways.

But what about that key quote from Locke and similar ones from other sources? Mortenson and Bagley argue that conservatives have misinterpreted them in a subtle but very important way: When Locke talked about “transferring” legislative powers, he was using that word in a specific sense, to refer to permanent transfers. The distinction between mere “delegation” and full “alienation” (of the people’s legislative authority to the king) was key to a major debate taking place in England at the time. He was not talking about a situation where the legislature delegates some decisions but reserves the right to revise or revoke its delegations in the future. Mortenson and Bagley note that some have read Locke that way over the years, and point to scattered references to the anti-alienation principle made by the Founders.

What’s more, the very first Congress acted on this understanding repeatedly, delegating important duties to the executive branch and others even though the Constitution gave these responsibilities to the legislative branch alone. To take just a few of many examples, it “delegated the entirety of its police power over federal lands to regional governments for implementation in their unbounded discretion”; assigned a three-member commission to figure out where the District of Columbia would be located and to buy the land with an open-ended appropriation; “gave the district’s mayor and council discretionary authority” to make their own laws in many areas; turned the ability to grant patents over to the executive branch; made the right to trade with Native American contingent upon a license granted at the full discretion of the executive; and “empowered the president to borrow up to $12 million to pay off the foreign debt, with the choice of prioritization among lenders left entirely up to him.” So far as Mortenson and Bagley can tell from the historical record, no one argued when these delegations were made that they raised constitutional issues, though sometimes there were concerns about whether they were wise policy.

As for the subsequent history of Supreme Court decisions? The decisions in question didn’t happen until well after the Founding itself, and even the 1825 Wayman case might be read to endorse the anti-alienation principle rather than the nondelegation doctrine, given the comment that “Congress may certainly delegate to others powers which the legislature may rightfully exercise itself.” If that’s right, true nondelegation arguments didn’t really start to crop up until later in the 19th century — though I would argue that Wayman‘s distinction between “important subjects” and “fill[ing] up the details” in areas of “lesser interest” is hard to sell as a distinction between delegating one’s powers and alienating them.

Regardless, to hear Mortenson and Bagley tell it, the nondelegation doctrine is a complete fiction. It did not exist at the Founding and virtually never made any difference, even during the much-later years when the Supreme Court professed to believe in it. There’s no reason, or at least no originalist reason, to revive it and pump it full of steroids today.

Reading the Tea Leaves

Mortenson and Bagley have hardly provided a definitive debunking of Gorsuch’s argument for the nondelegation doctrine. Responses to their work are already trickling out; Ilan Wurman, for instance, has a blog post challenging the way they reinterpret Locke’s view and questioning the relevance of some of the Founding-era delegations cited. But even Wurman says the paper should prompt a rethinking of exactly where to draw the line between allowed and disallowed delegations, which in turn raises the question of how courts could enforce a reinvigorated nondelegation doctrine in a fair and objective way.

I’m not big into predictions, but my guess is that the arguments of Mortenson and Bagley won’t prove quite strong enough to knock the nondelegation-revival train off its tracks. When they find a case they like, I think the conservatives on the Court will at least nominally return to the 1825 “fill up the details” standard, but probably will not prove eager to strike down one hugely consequential law after another on that basis. They can’t go too far down that road without losing a vote or two over concerns about judicial activism, highly subjective line-drawing, and the Court’s own legitimacy, so they’ll mostly stick to smaller, less publicly known provisions — such as the one challenged in Gundy, which gave the attorney general full discretion over whether and how to register sex offenders who’d been convicted before the sex-offender-registry law went into effect.

Of course, none of this says anything about Congress’s blame for the administrative state. Even if the Constitution allows legislators to punt countless zillion-dollar decisions to the executive branch, so that each administration can undo the actions of the last in pursuit of its own whims, there’s no excuse for actually doing so. Not everything that’s constitutional is also a good idea.

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