Nicholas R. Parrillo, Yale Law School, has posted Nondelegation, Original Meaning, and Early Federal Taxation: A Dialogue With My Critics, which appears in the Drake Law Review 71 (2024): 367-434
Proponents of toughening the nondelegation doctrine invoke original meaning. Confronted with the many congressional statutes that broadly delegated power in the 1790s, they claim that each of those acts falls into some exceptional category to which the nondelegation doctrine was supposedly inapplicable or weakly applicable, especially non-coercive matters or non-domestic matters. In a recent study in the Yale Law Journal, I brought to light major legislation of 1798 that delegated broadly, yet was coercive and domestic: the “direct tax” on all real estate nationwide, which empowered federal boards to revise the taxable values of land parcels on a mass regional basis “as shall appear to be just and equitable”—a delegation that elicited no constitutional objections. Several scholars have published rebuttals to my study, defending the idea of a tough originalist nondelegation doctrine in the face of my findings.--Dan Ernst
This Article, written for Drake University Law School’s Constitutional Law Symposium, responds to those rebuttals. First, Philip Hamburger and Aaron Gordon each argue that the nondelegation doctrine categorically prohibits administrative rulemaking, but with certain categorical exceptions, including one for fact-finding, into which they say the boards’ “just and equitable” mass revisions of 1798 fall. I respond that a fact-finding exception expansive enough to cover the boards’ indeterminate, contestable, and sweeping exercises of power will be unbounded and not distinguishable in a principled or predictable way from administrative rulemakings in general today. This means Hamburger’s and Gordon’s versions of the doctrine do not have the categorical objectivity they claim to deliver. Second, Ilan Wurman argues for a noncategorical, open-ended version of the nondelegation doctrine that allows Congress to delegate “details” but not “important subjects.” The mass-revision power of 1798, contends Wurman, was a detail. I respond that (a) the power was broader and more consequential than Wurman maintains, and (b) a theory of the nondelegation doctrine premised on the distinction between “important subjects” and “details” is so malleable as to be non-falsifiable as a historical matter, which means that any judge who invokes the theory to toughen the doctrine today is not following history’s lead but instead is engaging in a creative and political act of constitutional construction. Third, Ann Woolhandler argues for a categorical version of the nondelegation doctrine with an exception for all “public rights,” a category that includes taxation, suggesting Congress could delegate freely regarding taxation but not, say, interstate commerce. I respond that incorporating an exception for public rights (including taxation) into the nondelegation doctrine is not supported by either the discourse or the pattern of legislation in the founding era, nor by the mainstream of case law that first elaborated the doctrine in the mid-nineteenth century.
