Chabot on the Lost History of Delegation at the Founding

Christine Kexel Chabot, Loyola University Chicago School of Law, has posted The Lost History of Delegation at the Founding:

The Supreme Court is one decision away from bringing the administrative state to a grinding halt. Justice Gorsuch’s dissent in Gundy v. United States raises grave questions about the constitutionality of countless regulatory statutes in which Congress has delegated significant policymaking authority to the executive branch. Now that Justice Kavanaugh has signaled his general agreement with this approach, Justice Gorsuch’s dissent may soon become the majority. But history does not support Justice Gorsuch’s argument that, as an originalist matter, Congress cannot delegate significant policymaking authority.

This Article demonstrates that our Republic began with a completely different understanding of Congress’s constitutionally prescribed role. Alexander Hamilton, James Madison, and the First Congress all approved of legislation that delegated highly consequential policy decisions to the executive branch. This Article adds previously overlooked but critical historical evidence of constitutional debates leading up to these delegations, as well as the significant policies that the executive branch determined in Congress’s stead. After Alexander Hamilton proposed legislation delegating Congress’s Article I, section 8 power to “borrow Money” and “pay the Debt,” James Madison and other members of the First Congress debated this delegation and concluded that it was constitutional. The First Congress ultimately awarded President Washington and executive officers serving on the Sinking Fund Commission borrowing and payment authority that implicated financial policy decisions of the utmost importance to our national economy. The First Congress also delegated its power under the Intellectual Property Clause when it passed a bare-bones patent act that required executive officers including Thomas Jefferson to establish important substantive and procedural rules of patent law. Hamilton, Madison, and the First Congress never understood the Constitution to require that Congress decide all of the important policy questions, and the Supreme Court will create an unprecedented constitutional requirement if it requires Congress to start doing so now.

See also this.

–Dan Ernst