« Hard-line Advocacy in Dobbs—and Casey | Main | TX state court declares SB8 procedures invalid »

Thursday, December 09, 2021

Non-Delegation Doctrines: How Political Specifics Make Constitutional Law

Bagley-Mortenson's erudite article provides voluminous evidence that no Anglo-American polemicist or lawyer between the Glorious Revolution and the Election of 1800 complained about broad legislative delegations of power to executive agencies. Bagley-Mortenson's critics reply, however, that no one specifically disclaimed this position. (See e.g., Ilan Wurman here, stating that "there is almost no evidence unambiguously supporting the proposition that there was no nondelegation doctrine at the Founding"). In this game of presumption tennis, where's the ball?

Here's a general claim about constitutional history to make sense of the dog that doesn't bark. As I have argued earlier, constitutional abstractions emerge from political particulars. The cobbler shapes shoe to where it pinches the foot. One would expect, therefore, only specific objections to particular types of delegations, with the constitutional antidote pitched towards those particular delegees' proneness to venality or oppression. They may have endorsed non-delegation doctrines (emphasis on the plural) but not any one master doctrine to rule them all.

And this is precisely what one finds: Certain types of agents like excisemen and private banks inspired distrust, but no one denounced broad executive powers as such. Walpole's Country Party critics, for instance, bitterly denounced excisemen in 1733; North American colonists picked up the theme in 1776 by attacking George II for sending "hither swarms of Officers to harass our people," those swarms consisting primarily of customs officials. Country Party propagandists also attacked the Whig Junto's appointing the Bank of England to be England's fiscal agent, and Madison picked up this theme that private corporations were untrustworthy agents of the People in decrying the First Bank of the United States. Kevin Arlyck masterfully illustrates the particularity of delegation worries with his description of the 1797 debates over renewing the Treasury Secretary's 1790 statutory power to remit (waive) customs penalties. In Arlyck's account, Representative Edward Livingston warned of the risk that the Secretary might "favor a chosen few" in granting remissions, framing this objection in constitutional terms. Livingston was a New York Democratic-Republican congressperson and later a fierce Jacksonian: Of course, he would worry about the patronage opportunities provided to insiders by Federalist Treasury Secretaries wielding discretionary customs policy in the Port of New York, where Burr was trying to build a machine based on workingmen's access to credit. As Arlyck notes, these Democratic-Republican worries about over-powerful Treasury Secretaries all dissipated after Dem-Rep Albert Gallatin became Secretary of the Treasury.

AFAIK the nondelegationists have never provided any historical experiences explaining why 18th century politicians would fear all executive officers as a general matter. As Eric Nelson has shown, many American Revolutionaries were actually wanted to enlarge rather than shrink the power of executives. So I am inclined to believe that the non-delegation dog did not bark for the reason offered by Bagley-Mortenson: There simply wasn't any such dog.

Posted by Rick Hills on December 9, 2021 at 02:27 PM | Permalink


Important one.

It doesn't matter, whether you are originalist or not. Whether the founders stated it explicitly or not. In fact, nothing matters, but functionality. Here, it is almost the highest level of functionality. For Congress can legislate, but, it would be too general and impractical. Lacking the expertise of executive agents on the ground, filling details and practical methods for implementing it.

I quote from Currin v. Wallace (decided 1939):

"We have always recognized that legislation must often be adapted to conditions involving, details with which it is impracticable for the legislature to deal directly. We have said that-"The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply. Without capacity to give authorizations of that sort we should have the anomaly of a legislative power which in many circumstances calling for its exertion.. would be but a futility."

Here to the ruling:



Posted by: El Roam | Dec 9, 2021 4:19:28 PM

The comments to this entry are closed.