There’s No Historical Justification for One of the Most Dangerous Ideas in American LawRoundup
tags: Constitution, originalism, Constitutional Law, Federalism
Julian Davis Mortenson and Nicholas Bagley are law professors at the University of Michigan.
Most government activity in the United States rests on a simple idea: that it’s okay for the legislature to authorize the executive branch to regulate basically anything the legislature itself could reach—working conditions, pollution, elections, financial products, mask wearing, you name it. That idea is now under attack. Relying on a so-called nondelegation doctrine, conservative originalists insist that the Founders never intended for government to work this way. They call for courts to strike down any laws that delegate too much power—and much of the federal bureaucracy along with them.
Their argument is grounded in a cursory, selective review of the historical record; it simply falls apart under any kind of serious scrutiny. Americans in 1789 didn’t share the view that broad delegations of legislative power violated the Constitution. Indeed, they would have been baffled by the claim, because governments throughout the Anglo-American world had long relied on this very technique without controversy. There wasn’t any nondelegation doctrine at the founding, and the question isn’t close.
To understand why this matters, and just how wrong these critics are, start with the practicalities. Legislative delegations pervade just about every area of policy: air quality, drug testing, business regulation, health care, education, and so on. Legislatures have neither the bandwidth nor the expertise to write every detail of complex government programs, least of all when those programs need to adapt nimbly to technological changes, economic disruptions, and new information about the world.
So instead, Congress instructs the Environmental Protection Agency to set pollution standards that are “requisite to protect the public health,” the Federal Communications Commission to regulate the airwaves “in the public interest,” and the Justice Department to classify a drug as a controlled substance where “necessary to avoid an imminent hazard to the public safety.” Indeed, the current pandemic finds both the president and many governors turning to even broader legislative delegations for the legal authority to require people to stay home, to shut down businesses, to restrict international travel, and to push companies to ramp up production of medical equipment.
The delegation of regulatory power to federal agencies is thus the indispensable foundation of modern American governance. And it is under siege.
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