Mortenson and Bagley on Delegation at the Founding

Julian Davis Mortenson and Nicholas Bagley, University of Michigan Law School, have posted Delegation at the Founding:

This article refutes the claim that the nondelegation doctrine was part of the original constitutional understanding. As a matter of theory, there was no constitutional problem with delegating the authority to make rules so long as Congress did not irrevocably alienate its power to legislate. Any particular use of such delegated authority could validly be characterized as the exercise of either executive or legislative power, depending on the relationships a speaker wished to emphasize. Either way, there was no basis to claim that the Constitution prohibited administrative rulemaking of any sort. As a matter of practice, the early federal Congresses adopted dozens of laws that broadly empowered executive and judicial actors to adopt binding rules of conduct for private parties on some of the most consequential policy questions of the era. Yet the people who drafted and debated the Constitution virtually never raised objections to delegation as such, even as they feuded bitterly over many other questions of constitutional meaning.

--Dan Ernst