John Vlahoplus has posted Early Delegations of Federal Powers, which is forthcoming in the George Washington Law Review Arguendo:
Conservatives have long tried to eviscerate federal administrative law by divining an implicit constitutional doctrine forbidding Congress to delegate its legislative powers. Contemporary originalists continue the effort, arguing that the original meaning of the Constitution includes this doctrine despite its absence from the document’s text. In response, critics have begun to show that early American constitutional history and theory support contemporary administrative law either as a valid delegation of legislative power to the executive branch or as the executive branch executing a statutory directive (or both).--Dan Ernst. H/t: Legal Theory Blog
This Article expands on that response and critiques standard originalist arguments for a nondelegation doctrine. It demonstrates that early congressional statutes delegated federal powers to a broad group of actors including private experts acting alone, private experts acting with judicial or executive oversight, and non-federal authorities in addition to federal executive officials. Statutory guidance for exercising the delegated powers was nonexistent, aspirational, or limited to general restrictions. The delegations included areas demanding expertise or flexible decision-making and required the delegate to balance risks against economic costs. They addressed some of the most critical subjects for the nation’s early government: race, shipping, and the public fisc.
A 1790 statute, for example, protected the health and safety of sailors on foreign voyages. It specified minimum requirements for the types, amounts, and storage of food and water for every sailor. It also provided that each American ship of a certain size and crew "shall be provided with a chest of medicines, put up by some apothecary of known reputation, and accompanied by directions for administering the same; and the said medicines shall be examined by the same or some other apothecary, once at least in every year, and supplied with fresh medicines in the place of such as shall have been used or spoiled."
Food, water, and medicines have costs, of course. Congress could have balanced the costs of medicines to shipowners against the risks to sailors of illness or death at sea. It could have specified minimum required medicines and their proper administration just as it did minimum provisions and their storage. But Congress did not. Instead, it delegated to unelected medical experts the power to evaluate risks and benefits and to impose obligations on private American shipowners without providing any guidance on the types of medicines to include or their administration.
The use of experts and administrative law are well within the Constitution’s constraints on the federal government. Conservatives who oppose this exercise of federal power may always do so in Congress or through living constitutional arguments. But they cannot rely on history to claim that the “original meaning” of the Constitution includes a nondelegation doctrine.