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.
Jane Chong: How to actually use the Defense Production Act
The delegation of regulatory power to federal agencies is thus the indispensable foundation of modern American governance. And it is under siege. Over the past year, a resurgent conservative majority on the Supreme Court has signaled that it is poised to breathe life into the “nondelegation doctrine.” A largely forgotten relic of the Supreme Court’s embarrassing (and quickly abandoned) resistance to the New Deal, the nondelegation doctrine would allow courts to strike down laws that, in their view, give the executive branch too much power with too little guidance.
The threat to responsible government is hard to overstate. If open-ended delegations are unconstitutional, Justice Elena Kagan observed, “then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.”
What’s the justification for adopting a doctrine that would threaten the very foundation of the modern American state? For Justice Neil Gorsuch, who appears to be leading the charge to reinvigorate the doctrine, the answer comes down to originalism. “The framers understood,” Gorsuch claimed in a 2019 dissent, “that it would frustrate the system of government ordained by the Constitution if Congress could merely announce vague aspirations and then assign others the responsibility of adopting legislation to realize its goals.”
For years, progressive lawyers have mostly reacted to such arguments by rolling their eyes. Surely there’s too much water under the bridge for the country to go back to 1789. And it does seem awfully convenient that the Founders supposedly believed in a doctrine that aligns so neatly with the Republican Party’s desire to bring the administrative state to heel.
Such skepticism about the very legitimacy of originalism, however, has meant that the historical accuracy of originalist claims about nondelegation doctrine has gone largely unchallenged—until now. In a new paper, we demonstrate that there was no such thing as a nondelegation doctrine at the founding.
To see why, keep in mind that originalists want to discern the “original public meaning” of the Constitution. That can’t be a secret or hidden meaning. It must be the meaning that the public—and in particular, the delegates to the state ratifying conventions—would have assigned to the Constitution’s spare text. For originalists, the burden of proof is high: to justify a judicial assault on laws adopted by Congress and signed by the President, the historical evidence should be nothing short of bulletproof.