Tuesday, March 17, 2015

Hood on Reviving the Non-Delegation Doctrine

Although apparently it went up on SSRN in December, we’ll note, for the benefit of historical commentators on Justice Thomas’s concurring opinion in Department of Transportation v. Association of American Railroads, that Joel William Hood, Brigham Young University J. Reuben Clark Law School, has posted Before There Were Mouseholes: Resurrecting the Non-Delegation Doctrine.  Here is the abstract:    
There are now over five-hundred federal agencies and departments. Some are executive, others independent, but most are a far cry from the strict separation of powers originally conceived in the United States Constitution and envisioned in other founding-era documents. The purpose of this paper is to examine those documents and other fundamental writings that influenced the delegates to the Federal Convention of 1787 in order to demonstrate that the non-delegation doctrine was — and still is — an integral and inherent part of separation of powers. In fact, it is the doctrine upon which the bedrock principle of separation of powers was laid. This assertion invites the reader to critique in new light the Court’s decisions regarding the administrative state since J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928).

This night light is magnified through the following evidence: Non-delegation doctrine debate during Federal Convention; Non-delegation amendment included in James Madison's original 17 amendments for the Bill of Rights; State constitutions at the time of the ratification of the Constitution; Philosophical background of the Framers (Locke and Montesquieu); 18th-century dictionaries.