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Nondelegation doctrine is abject nonsense

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Julian Davis Mortenson and Nicholas Bagley have a great piece about how ludicrous “originalist” arguments in defense of the nondelegation doctrine are:

Like a bad penny, the nondelegation doctrine keeps turning up. Its persistence is puzzling. Apart from two cases in one exceptional year, the
Supreme Court has never relied on the doctrine to invalidate an Act of
Congress. Its reinvigoration would mark a radical break with constitutional practice and could entail the wholesale repudiation of modern
American governance. Yet some critics of the administrative state still
claim that the Constitution was originally understood to contain an
implicit bar on delegating legislative power. On their account, the zealous application of a nondelegation doctrine is necessary to bring “a second coming of the Constitution of liberty,” one consistent with the Constitution’s original public meaning.

[…]

There can be no second coming, however, if there has never been a first. As a group, originalists advance widely varying versions of the
nondelegation doctrine, lending a decidedly protean flavor to what is
supposedly a rock-hard historical fact. But none of the variants on offer
is supported by a serious review of the Founding Era evidence. There
was no nondelegation doctrine if legislative power is defined as “the power to adopt generally applicable rules of conduct governing future actions by private persons.” There was no nondelegation doctrine if legislative power is defined as regulation of “those important subjects, which must be entirely regulated by the legislature itself” rather than “those of less interest,” the details of which may be “fill[ed] up” by an exercise of executive power. There was no nondelegation doctrine if legislative power is defined as “the power to make rules that b[i]nd or constrain[] subjects.” There was no nondelegation doctrine if legislative power is defined as “the authority to make rules for the governance of society.” And there was no nondelegation doctrine if legislative power is defined as the “discretion . . . to decide what conduct would be lawful or unlawful.”

Nondelegation — a doctrine the Supreme Court has applied for 5 whole months of the previous 234 years — has nothing to do with “originalism.” Its very brief life was the pure product of contingent circumstances. The Court was hearing challenges to a highly unusual statute whose political support had crumbled, and in that context arguments about delegation appealed both to reactionary justices who were looking for any excuse to strike down New Deal programs, and to the leader of the Court’s liberal wing, who was pushing 80 and still clung to anachronistic ideas about how progressive reform should be decentralized. The doctrine died with the National Industrial Recovery Act and should remain buried. It has no basis in the text or history of the Constitution, and is fundamentally based on a willful misunderstanding of how the separation of powers works.

Alas, grand theory does not meaningfully constrain judges, so while this argument is unanswerable Gorsuch and his colleagues will have no compunction about using it to randomly throw out regulations they don’t like.

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