Neil Gorsuch Supports an Originalist Theory That Would Destroy Modern GovernanceHistorians in the News
tags: legal history, Supreme Court, originalism, Jurisprudence
On Thursday, the Columbia Law Review published one of the most important and topical scholarly articles in recent memory, “Delegation at the Founding.” Its authors, Julian Davis Mortenson and Nicholas Bagley, put forth a sweeping argument: They assert that an ascendant legal theory championed by conservative originalists has no actual basis in history. That theory, called the nondelegation doctrine, holds that the Constitution puts strict limits on Congress’ ability to let the executive branch set rules and regulations. Congress, for instance, could not direct the Environmental Protection Agency to set air quality standards that “protect public health,” and let the agency decide what limits on pollution are necessary to meet that goal. Nondelegation doctrine has enormous consequences for the federal government’s ability to function, since Congress typically sets broad goals and directs agencies to figure out how to achieve them. The theory is supported by a majority of the current Supreme Court; in 2019, Justice Neil Gorsuch signaled his eagerness to apply the doctrine, and at least four other conservative justices have joined his crusade.
Gorsuch and his allies in academia insist that the men who wrote the Constitution believed in the nondelegation doctrine, giving the theory an originalist pedigree. Yet Mortenson and Bagley, both law professors at the University of Michigan and former Supreme Court clerks, have painstakingly debunked originalists’ claims of historical support for the doctrine. The publication of their article presents a grave challenge to conservative originalists like Gorsuch who purport to follow the evidence even when it leads to an outcome that clashes with their political preferences. As Mortenson and Bagley put it: “You can be an originalist or you can be committed to the nondelegation doctrine. But you can’t be both.”
On Thursday, I spoke with the authors about their paper and the response it has already provoked among academics with near-dogmatic faith in the doctrine they debunk. Our conversation has been edited for length and clarity.
Mark Joseph Stern: What is the nondelegation doctrine?
Julian Davis Mortenson: Nondelegation is a judicially created doctrine that has had exactly one year of actual existence, 1935, over the 2½ centuries of the American republic. It says, in essence, that only Congress can make rules that govern private conduct, and all administrative agencies can do is apply the rules and maybe fill in some small details about the rules in the course of doing their work.
What happened in 1935?
Mortenson: The Supreme Court was very hostile to the New Deal, to economic interventionism. And it issued two opinions concluding that Congress had given the president too much discretion without giving him enough guidance. Those decisions happen, and then the doctrine is gone for many years.
Nicholas Bagley: It’s pretty much dormant until the 1980s and 1990s, when the conservative legal establishment starts to poke around for doctrines that might be able to restrain the federal government at a time when they felt it was too big, too powerful, and doing too much at the states’ expense. Conservative scholars glom onto nondelegation and start pushing for its reinvigoration in the courts. The Supreme Court slapped that down in 2001 in a unanimous decision written by none other than Justice [Antonin] Scalia. He said: Look, we’re not going to play this game. There’s no principled way for a court to draw these distinctions. We’re going to trust Congress to take care of protecting its own prerogatives.
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