Amicus Curiae Brief — West Virginia, et al., Petitioners v. Environmental Protection Agency, et al.

Supreme Court briefJan 25, 2022

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No. 20-1530

IN THE

Supreme Court of the United States

STATE OF WEST VIRGINIA, ET AL.,

Petitioners,

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF OF JULIAN DAVIS MORTENSON AS

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

BRIAN R. FRAZELLE

MIRIAM BECKER-COHEN

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

January 25, 2022

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................

INTEREST OF AMICUS CURIAE .......................

INTRODUCTION AND SUMMARY

OF ARGUMENT.................................................

ARGUMENT ..........................................................

Legislative Delegations Were

Uncontroversial at the Founding ...............

II. Constitutional Text and Structure

Permit Broad Delegations of Rulemaking

Authority .....................................................

III. The First Congresses Routinely

Delegated Major Policy Questions to the

Executive Branch ........................................

A. Delegations of Authority by the

First Congress ....................................

B. Delegations of Authority by Later

Congresses ..........................................

IV. Attempts to Reconcile Early Statutes

with Modern Proposals for Strict

Delegation Limits Hinge on Distinctions

that the Founders Rejected ........................

A. Private Rights ....................................

B. Military and Foreign Affairs ...........

C. “Important Subjects” .........................

V. The Post-Ratification Efforts of a Small

Minority of Politicians to Create a NonDelegation Doctrine Were Unsuccessful....

CONCLUSION.......................................................

(i)

TABLE OF AUTHORITIES

Page(s)

Cases

Dep’t of Transp. v. Ass’n of Am. Railroads,

575 U.S. 43 (2015) ................................. 8, 18, 22

Gamble v. United States,

139 S. Ct. 1960 (2019) ...............................

Gundy v. United States,

139 S. Ct. 2116 (2019) ......................... 23, 25, 27

INS v Chadha,

462 US 919 (1983) .....................................

The Margaretta,

16 F. Cas. 719 (C.C.D. Mass. 1815) ..........

Martin v. Mott,

25 U.S. 19 (1827) .......................................

Printz v. United States,

521 U.S. 898 (1997) ...................................

United States v. Curtiss-Wright Exp. Corp.,

299 U.S. 304 (1936) ...................................

Wayman v. Southard,

23 U.S. 1 (1825) ......................................... 26, 27

Constitutional Provisions

Articles of Confederation of 1781, art. II ....

U.S. Const. art. I, § 1............................ 2, 8, 12, 22

U.S. Const. art. I, § 8, cl. 3 ...........................

U.S. Const. art. I, § 8, cl. 7 ...........................

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

U.S. Const. art. I, § 8, cl. 8 ...........................

U.S. Const. art. I, § 8, cl. 18 .........................

U.S. Const. art. I, § 9.................................... 10, 23

U.S. Const. art. IV, § 3, cl. 2. .......................

Va. Const. of 1776 ........................................

Statutes

Act of Aug. 7, 1789, 1 Stat. 50 .....................

Act of Sept. 29, 1789, 1 Stat. 95 ..................

Act of Apr. 10, 1790, 1 Stat. 109 ..................

Act of Apr. 30, 1790, 1 Stat. 119 ..................

Act of May 26, 1790, 1 Stat. 122 ..................

Act of July 22, 1790, 1 Stat. 137 ..................

Act of Aug. 4, 1790, 1 Stat. 138 ...................

Act of Aug. 4, 1790, 1 Stat. 145 ...................

Act of Aug. 12, 1790, 1 Stat. 186 .................

Act of Mar. 3, 1791, 1 Stat. 199 ...................

Act of Feb. 20, 1792, 1 Stat. 232 ..................

Act of June 4, 1794, 1 Stat. 372 ...................

Act of May 27, 1796, 1 Stat. 474 ..................

Act of July 9, 1798, 1 Stat. 580 .................... 20, 21

TABLE OF AUTHORITIES – cont’d

Page(s)

42 U.S.C. § 7411(d).......................................

Books, Articles, and Other Authorities

1 Annals of Cong. (1789) ............................

3 Annals of Cong. (1791) ............................ 26, 29

Kevin Arlyck, Delegation, Administration,

and Improvisation, 97 Notre Dame L.

Rev. 243 (2021) .................................... 17, 24, 25

Edmund Burke, Reflections on the

Revolution in France (1790) ...................

Cecil T. Carr, Delegated Legislation:

Three Lectures (1921) ..............................

Ronald A. Cass, Delegation Reconsidered:

A Delegation Doctrine for the Modern

Administrative State, 40 Harv. J.L. &

Pub. Pol’y 147 (2017) ..............................

Christine Kexel Chabot, The Lost History

of Delegation at the Founding,

56 Ga. L. Rev. 81 (2021) ......................... 14, 16

Paul Craig, The Legitimacy of US

Administrative Law and the

Foundations of English Administrative

Law: Setting the Historical Record

Straight (2016) ........................................

TABLE OF AUTHORITIES – cont’d

Page(s)

A Democratic Federalist, Pa. Herald,

Oct. 17, 1787, reprinted in 13

Documentary History of the Ratification

of the Constitution (John P. Kaminski

et al. eds., 2009) ......................................

12 Documentary History of the First

Federal Congress of the United States

of America (Linda Grant DePauw et al.

eds., 1972) ................................................

The Federalist No. 47,

(J. Cooke ed., 1961) .................................

6, 7

Philip Hamburger, Is Administrative Law

Unlawful? (2014) .....................................

Samuel Johnson, A Dictionary of the

English Language (6th ed. 1785) ...........

Gary Lawson, Delegation and Original

Meaning, 88 Va. L. Rev. (2002) ..............

John Locke, Two Treatises of Government

(1690) .......................................................

Thomas W. Merrill, Rethinking Article I,

Section 1: From Nondelegation to

Exclusive Delegation, 104 Colum. L. Rev.

2097 (2004) ..............................................

8, 9

Julian Davis Mortenson, Article II Vests

the Executive Power, Not the Royal

Prerogative, 119 Colum. L. Rev. 1169

(2019) .......................................................

TABLE OF AUTHORITIES – cont’d

Page(s)

Julian Davis Mortenson & Nicholas

Bagley, Delegation at the Founding,

121 Colum. L. Rev. 277 (2021) ............... passim

Eric A. Posner & Adrian Vermeule,

Interring the Nondelegation Doctrine,

69 U. Chi. L. Rev. 1721 (2002) ...............

8, 10

Nicholas R. Parrillo, A Critical Assessment

of the Originalist Case Against

Administrative Regulatory Power: New

Evidence from the Federal Tax on Private

Real Estate in the 1790s, 130 Yale L.J.

1288 (2021) .............................................. 20, 21

Nicholas R. Parrillo, Supplemental Paper

to “A Critical Assessment of the

Originalist Case Against Administrative

Regulatory Power” (May 14, 2021) ..... 8, 23, 25

Republicus, Ky. Gazette, Feb. 16, 1788,

reprinted in 8 Documentary History of the

Ratification of the Constitution (John

P. Kaminski et al. eds., 2009) .............

David Schoenbrod, The Delegation

Doctrine: Could the Court Give It

Substance?, 83 Mich. L. Rev. 1223

(1985) ...................................................

Algernon Sidney, Discourses Concerning

Government (1698) ..................................

Session of Virginia Council of State

(Jan. 14, 1778) .........................................

vii

TABLE OF AUTHORITIES – cont’d

Page(s)

Henry St. John, Viscount Bolingbroke,

A Dissertation upon Parties (2d ed.

1735) ........................................................

Edward C. Walterscheid, Patents and the

Jeffersonian Mythology, 29 J. Marshall

L. Rev. 269 (1995) ...................................

James Wilson, Lectures on Law (1791),

reprinted in 1 Collected Works of

James Wilson (Kermit L. Hall & Mark

David Hall eds., 2011) ..............................

Gordon S. Wood, Empire of Liberty

(2009) .......................................................

Ilan Wurman, Nondelegation at the

Founding, 130 Yale L.J. 1490

(2021) ............................................. 12, 16, 26, 30

INTEREST OF AMICUS CURIAE1

Julian Davis Mortenson is the James G. Phillipp

Professor of Law at the University of Michigan Law

School. A specialist in constitutional history, he has

written extensively on executive authority and the

separation of powers. Among his other publications,

Professor Mortenson is the coauthor, with Nicholas

Bagley, of Delegation at the Founding, 121 Colum. L.

Rev. 277 (2021), a leading article examining constitutional principles in the Founding era regarding legislative delegations of authority.2

INTRODUCTION AND

SUMMARY OF ARGUMENT

Petitioners claim that 42 U.S.C. § 7411(d), a provision of the Clean Air Act, does not authorize the

Clean Power Plan issued by the Environmental Protection Agency in 2015. And they urge this Court, in

interpreting the Act, to begin by imposing a constriction: Congress must speak “with unmissable clarity” before authorizing an agency to resolve “major

questions.” Pet. Br. 14. This rule, they say, is needed

to enforce a constitutional prohibition on legislative

delegations of authority—a prohibition far stricter

than any this Court has ever recognized. Id. at 44-49.

Under the original understanding of the Constitution,

however, there is no such prohibition to enforce, either

1 The parties have consented to the filing of this brief.

Under

Rule 37.6 of the Rules of this Court, amicus states that no counsel

for a party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus

or his counsel made a monetary contribution to its preparation or

submission.

2 Professor Bagley has recently taken a position in government

service.

directly or through a “major questions” rule. Petitioners’ arguments to that effect should be rejected.

At the Founding, prevailing legal and political tenets posed no barrier to legislative delegations of authority on matters of great importance. Eighteenthcentury legislatures across the Anglo-American world

had a long tradition of delegating broad discretionary

rulemaking power to agents, who were not regarded as

impermissibly “making law” when they exercised such

power within the confines of a statutory mandate.

Some writers maintained that the legislature could

not surrender its legislative power by irrevocably

transferring it elsewhere, a rule that reflected ascendant theories about political consent and the justifications for government. But none of these discussions

related to statutory delegations of rulemaking power,

exercised under the supervision and control of the legislature. Consistent with theory and precedent, legislative delegations were a pervasive feature of both preand post-independence state governance in America.

The Constitution’s division of power among three

branches, and its assignment of all “legislative Powers” to Congress, U.S. Const. art. I, § 1, did not introduce new restrictions on delegation. Nothing inherent

in the text or structure of the Constitution requires

any limit on Congress’s power to delegate rulemaking

authority, so long as Congress does not divest itself of

its ultimate control over the legislative process. And

the debates surrounding the Constitution’s drafting

and ratification betray no concern about legislative

delegations.

This reading is confirmed by political practice in

the early Republic, which decisively refutes the existence of any prohibition on delegation. In statute after

statute, the First Congress enacted sweeping delegations of policymaking authority over the most crucial

problems facing the young nation, among them foreign

commerce, patent rights, taxation, pensions, refinancing the national debt, regulating the federal territories, raising armies, and calling up the militia. These

delegations routinely granted vast discretion to resolve major policy questions with little or no guidance.

And they repeatedly permitted the executive branch to

devise rules that intruded on private rights and conduct. Broad delegations of authority, in short, were

ubiquitous in the early Republic.

Modern proponents of a strict nondelegation doctrine have fallen short in their efforts to account for

this evidence. To explain away the powerful evidence

of early congressional enactments, nondelegation proponents have devised various limiting principles: Congress may delegate questions involving public rights

but not private rights, “overlapping” powers but not

“core” legislative powers, the authority to “fill in the

details” but not to resolve “important subjects.” These

distinctions, however, are entirely a modern invention.

No one articulated them in the Founding era. Nor did

anyone invoke them to justify early congressional delegations. Indeed, the few legislators who raised delegation concerns as the 1790s wore on did so precisely

in the context of bills addressing public rights, foreign

affairs, and the military—the very topics that some

commentators now claim are exempt from delegation

restrictions. Modern attempts to craft a more stringent nondelegation doctrine are thus not only at odds

with early congressional practice—they are at odds

with the failed objections to that practice.

As for those failed objections, sporadically raised

by a small group of legislators in later Congresses,

they undermine rather than support the existence of

any shared belief in a prohibition on delegation. Constitutional arguments against delegation were almost

never voiced, were typically peripheral to the relevant

debates, and repeatedly failed. Rather than restating

accepted principles, these arguments were innovative

attempts to create constitutional restrictions not previously recognized. At best, early discussions suggest

that some individuals wanted to craft limits on Congress’s delegation authority. But far from revealing a

preexisting consensus on the matter, the novelty and

failure of those arguments show the opposite.

Given the vast historical record from the Founding

era, it should be easy to identify concrete, consistent

evidence of widely understood limits on legislative delegations—if they existed. But the proponents of a

newly invigorated nondelegation doctrine have not

even mustered “ambiguous historical evidence,” Gamble v. United States, 139 S. Ct. 1960, 1969 (2019) (quotation marks omitted), to support it. Original meaning

provides no basis for a strict nondelegation doctrine or

its enforcement through a “major questions” rule.

ARGUMENT

Legislative Delegations Were

Uncontroversial at the Founding.

In the eighteenth century, legislative power was

understood to be inherently delegable. The legislature’s authority had already been delegated by the

people, see James Wilson, Lectures on Law, ch. V

(1791), reprinted in 1 Collected Works of James Wilson

412 (Kermit L. Hall & Mark David Hall eds., 2011),

and the propriety of further subdelegation was taken

for granted, id. ch. XI, at 721. Indeed, British theory

and practice placed no limits on statutory delegations

of policymaking authority to agents outside the legislature. See Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev.

277, 296-99 (2021). As the Whig hero Algernon Sidney

observed, even if the King could not “have the Legislative power in himself,” Parliament could choose to give

him the “part in it” that was “necessarily to be performed by him, as the Law prescribes.” Discourses

Concerning Government 459 (1698).

This theory was amply reflected in practice. Parliament had a long tradition of delegating rulemaking

authority to the Crown and other agents. See Paul

Craig, The Legitimacy of US Administrative Law and

the Foundations of English Administrative Law: Setting the Historical Record Straight 19 (2016),

https://ssrn.com/abstract=2802784 (discussing “prominent instances of rulemaking power accorded to administrators by Parliament from the sixteenth century

onwards”). And this tradition continued through the

eighteenth century. See Cecil T. Carr, Delegated Legislation: Three Lectures 48-56 (1921). Extraordinarily

broad delegations of rulemaking authority covered

matters such as commercial regulations, environmental law, and excise. See Craig, supra, at 19-27.

The only theoretical limit to these practices voiced

by (some) writers was that a legislature had to retain

ultimate control—just as the people themselves retained control over the legislature to which they made

the initial delegation. See Henry St. John, Viscount

Bolingbroke, A Dissertation upon Parties 209 (2d ed.

1735) (“the People of Great Britain delegate, but do not

give up, trust, but do not alienate their Right and their

Power” (emphasis added)); Edmund Burke, Reflections

on the Revolution in France 294 (1790) (“the House of

Commons cannot renounce its share of authority,” because “the constitution[] forbids . . . such surrender”

(emphasis added)).

What was prohibited, in other words, was the

alienation of legislative power, which would sever the

connection with the authority of the people. As John

Locke argued, “the legislative [body] cannot transfer

the power of making laws to any other hands: for it

being but a delegated power from the people, they who

have it cannot pass it over to others.” Two Treatises of

Government, bk. II, ch. XI, § 141 (1690) (emphasis

added).

Locke was assuredly not discussing statutory delegations of rulemaking authority to administrators.

He was instead attacking the claim—a tenet of royal

absolutism—that the people had not merely delegated

legislative authority to their sovereign, but had alienated it entirely. See Mortenson & Bagley, supra, at

308-09 (surveying the arguments Locke was repudiating). To associate Locke with nondelegation sentiment

is to impose modern concerns on his writings that have

nothing to do with the historical conversation that was

actually taking place. E.g., Ronald A. Cass, Delegation

Reconsidered: A Delegation Doctrine for the Modern

Administrative State, 40 Harv. J.L. & Pub. Pol’y 147,

153 (2017) (claiming that Locke’s concerns “apply

equally to delegation”).

Indeed, precious little among the writings that influenced the Founders concerns the legislature’s ability to delegate policymaking authority. Those writings

instead speak in broad strokes about separating government powers to prevent wholesale consolidation.

Montesquieu, for example—as James Madison later

explained—warned only of the “whole power of one department” being wielded “by the same hands which

possess the whole power of another department.” The

Federalist No. 47, at 325-26 (J. Cooke ed., 1961). That

danger could arise “if the king . . . possessed also the

complete legislative power.” Id. at 326. But that danger is absent where the king “cannot of himself make

a law.” Id.

Consistent with British precedent and contemporary theory, legislative delegations were a persistent

feature of post-independence state governance in

America, including in states that adopted a formal separation of powers as the federal Constitution later

would. Virginia’s constitution, for example, required

the “legislative, executive, and judiciary” departments

to be “separate and distinct, so that neither exercise

the powers properly belonging to the other.” Va.

Const. of 1776, ¶ 4. Yet Virginia’s legislature “delegated many special powers” to the governor and Council of State, including the power to restrict counterfeiting and “maintain fair prices.” Session of Virginia

Council of State (Jan. 14, 1778) (editorial note),

https://founders.archives.gov/documents/Madison/0101-02-0065.

Collectively, the states “expressly delegated” an

immense range of legislative authorities to the Continental Congress. Articles of Confederation of 1781,

art. II. That body, in turn, further delegated legislative authority to committees, boards, and officers on a

plethora of subjects including medical services, the

postal system, and settlement of the national accounts.

See Mortenson & Bagley, supra, at 303-04.

In sum, when the Constitution was written and

ratified, the prevailing concept of “legislative” power

did not entail any limits on statutory delegations of

rulemaking authority.

II. Constitutional Text and Structure Permit

Broad Delegations of Rulemaking

Authority.

To prevent the tyranny that an accumulation of

“all powers . . . in the same hands” could enable, The

Federalist No. 47, supra, at 324, the Framers assigned

legislative, executive, and judicial authorities to three

separate branches. But that separation does not necessarily imply limits on Congress’s ability to delegate

rulemaking authority.

Article I vests Congress with “[a]ll legislative Powers herein granted,” U.S. Const. art. I, § 1, but “there

is nothing in the Constitution that specifically states

. . . that Congress may not authorize other actors to

exercise legislative power,” Gary Lawson, Delegation

and Original Meaning, 88 Va. L. Rev. 327, 335 (2002).

“The text of the Constitution,” rather, is “silent on the

question whether or to what extent legislative power

may be shared.” Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 Colum. L. Rev. 2097, 2127 (2004). And

“even if Congress cannot by statute confer power that

is ‘legislative’ on others, the text does not tell us how

to discern when that has happened.” Nicholas R. Parrillo, Supplemental Paper to “A Critical Assessment of

the Originalist Case Against Administrative Regulatory Power,” at 3 (May 14, 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3696902.

The question, in short, is not “whether the legislative power is vested exclusively in the Congress,” but

“whether a statutory grant of authority can ever violate the constitutional allocation,” and if so, in what

circumstances. Eric A. Posner & Adrian Vermeule,

Interring the Nondelegation Doctrine, 69 U. Chi. L.

Rev. 1721, 1729 (2002). “The Vesting Clause does not

address that dispute.” Id.

The word “legislative” does not resolve the matter.

Although it has been argued that formulating “generally applicable rules of private conduct,” even under

statutory authority, is necessarily an “exercise of legislative power,” Dep’t of Transp. v. Ass’n of Am. Railroads, 575 U.S. 43, 70 (2015) (Thomas, J., concurring

in the judgment), the Founding-era passages typically

cited for that proposition do not address the issue.

Nearly all references to “legislative power” in these

sources merely say that it “is the power to make laws,

or something to that effect,” Merrill, supra, at 2124,

without discussing (much less questioning) the legitimacy of rulemaking discretion under a duly enacted

law.

Moreover, the Founders did not regard “legislative” and “executive” powers in such a rigid fashion;

they viewed them instead in nonexclusive and relational terms. The same government action could be

described as either “legislative” or “executive” depending on the actor, see Mortenson & Bagley, supra, at

313-32, in part because executive power was understood simply as the authority to carry out projects defined by a prior exercise of legislative power, see Julian

Davis Mortenson, Article II Vests the Executive Power,

Not the Royal Prerogative, 119 Colum. L. Rev. 1169,

1221-38 (2019); cf. INS v. Chadha, 462 US 919, 953

n.16 (1983) (“When the Attorney General performs his

duties pursuant to [the Immigration and Nationality

Act], he does not exercise ‘legislative’ power.”).

That is why government officials with the power to

craft binding rules, such as legislators and treatymakers, were regularly described as executive actors,

“servants” of the people who were “accountable to

them” for “how they execute” their delegated authority. Republicus, Ky. Gazette, Feb. 16, 1788, reprinted

in 8 Documentary History of the Ratification of the

Constitution 377 (John P. Kaminski et al. eds., 2009).

Thus, Congress and its members were often described

as “an executive body.” A Democratic Federalist, Pa.

Herald, Oct. 17, 1787, reprinted in 13 id. at 387. On

the same understanding, rulemaking pursuant to statutory authorization was also described as “executive”

power. See Mortenson & Bagley, supra, at 313-23.

Structural arguments are no more successful in

identifying implicit constitutional limits on delegation.

Indeed, to the extent the Constitution sheds light on

the matter, it points against such limits. The Framers

included explicit restrictions on Congress’s legislative

authorities, see U.S. Const. art. I, § 9, which weighs

against inferring additional unwritten limits. And the

Constitution empowers Congress to make “all Laws”

that are “necessary and proper for carrying into Execution” Congress’s legislative powers. Id. art. I, § 8,

cl. 18. In the end, all that can safely be inferred from

structure is that Congress may not alienate its legislative powers—the only outcome inconsistent with the

vesting clauses.

Indeed, among all the records of the Constitutional

Convention, the ratification debates, and The Federalist, there is “remarkably little evidence” that the

Founders envisioned any limit on legislative delegations. Posner & Vermeule, supra, at 1733. This is unsurprising because their “principal concern was with

legislative aggrandizement,” not “grants of statutory

authority to executive agents.” Id. at 1733-34. By one

recent count, the secondary literature “claims to have

found thirteen references to legal limits on legislatures’ capacity to delegate in American discourse from

1774 through 1788.” Parrillo, Supplement, supra, at 8.

These “scattered” references “mostly run to a paragraph or less,” and many address delegations “categorically different from those that Congress makes to an

agency.” Id.; e.g., id. at 43 (Pennsylvania’s legislature

gave “full” legislative power over all subjects to a

“council of safety”).

In short, “[t]he overall picture is that the founding

era wasn’t concerned about delegation.” Posner & Vermeule, supra, at 1734.

III. The First Congresses Routinely Delegated

Major Policy Questions to the Executive

Branch.

Early congressional enactments offer “contemporaneous and weighty evidence of the Constitution’s

meaning.” Printz v. United States, 521 U.S. 898, 905

(1997) (quotation marks omitted). And they are devastating to the nondelegation case.

In the Republic’s first decade, Congress routinely

delegated virtually unguided policymaking authority

on the most pressing questions facing the nation.

These statutes conveyed authority over private rights

and interests that went far beyond filling in details,

finding facts, or organizing public structures. Almost

as telling as the enactment of these statutes is the

dearth of objections to them on delegation grounds, despite pervasive constitutional debate in the early Congresses.

A. Delegations of Authority by the First

Congress

1. Regulating Commerce with Native

American Tribes

“Nothing preoccupied the Federalist administration more than having to deal with [the] native peoples” of the trans-Appalachian West. Gordon S. Wood,

Empire of Liberty 114 (2009). Committed to the settlement of the territories, fearful of provoking war, but

believing that trade could foster good relations, President Washington and others advocated regulation of

commerce with Indigenous peoples. See Mortenson &

Bagley, supra, at 340-41.

Accordingly, the First Congress prohibited anyone

from conducting “any trade or intercourse with the Indian tribes” without a license issued by the executive

branch, and it gave the president complete discretion

over the licensing scheme—authorizing “such rules,

regulations and restrictions, as . . . shall be made for

the government of trade and intercourse with the Indian tribes.” Act of July 22, 1790, ch. 33, § 1, 1 Stat.

137, 137. Although the president’s rules would “govern[]” any person receiving a license “in all things

touching the said trade and intercourse,” id., the statute said nothing—not one word—about their content.

And Congress gave the president even more discretion

regarding “the tribes surrounded in their settlements

by the citizens of the United States,” id., authorizing

him to waive the license requirement whenever he

“deem[ed] it proper.” Id.

“This was indeed a broad statute that delegated

authority to regulate private conduct,” “giving the Executive complete discretion to decide whether, to

whom, and why to grant such licenses.” Ilan Wurman,

Nondelegation at the Founding, 130 Yale L.J. 1490,

1543 (2021). President Washington’s use of this authority illustrates the breadth of policymaking discretion the law conferred. His regulations adopted a host

of rules that specified who could trade, what items

could be traded, and where. See Mortenson & Bagley,

supra, at 341. Yet there is no evidence anyone raised

anything resembling a nondelegation objection.

The authority Congress delegated here was

squarely within its own legislative wheelhouse. While

the president has military and diplomatic authorities,

Congress alone has the legislative power to “regulate

Commerce . . . with the Indian Tribes.” U.S. Const.

art. I, § 8, cl. 3.

Attempts to explain the legislation away on other

grounds are no more availing. The delegated authority governed the conduct of Americans within the

boundaries of the individual states. And even as to its

application in the federal territories, the idea that legislative power could be delegated more freely in the

borderlands, see Philip Hamburger, Is Administrative

Law Unlawful? 105 (2014), is nothing but a post hoc

rationale. No one at the time suggested such a thing.

See Mortenson & Bagley, supra, at 341-42.

2. Exercising Police Power in the Federal

Territories

One of Congress’s first acts was to “continue” the

Northwest Ordinance, which authorized territorial officials to adopt “such laws of the original States, criminal and civil, as may be necessary, and best suited to

the circumstances of the[ir] district.” Act of Aug. 7,

1789, ch. 8, 1 Stat. 50, 51 (emphasis added). The statute delegated standardless discretion to craft the entire body of laws for the territories.

Notably, Congress made several changes to the

Northwest Ordinance “to adapt [it] to the present Constitution,” Act of Aug. 7, 1789, 1 Stat. at 51, thus specifically turning its attention to whether the legislation ran afoul of the new constitutional structure. But

in doing so, Congress made only organizational

changes to the appointment and reporting system; it

made no changes to the Ordinance’s sweeping delegation of substantive rulemaking authority. See Mortenson & Bagley, supra, at 335.

Territorial officials exercised these broad powers,

adopting measures ranging from the regulation of taverns to the probate of wills, from liability for trespassing animals to the suppression of gambling. See

Mortenson & Bagley, supra, at 335. If the Founders

allowed a person to be publicly whipped for violating

rules that Congress never enacted—as they did here,

for instance, for petty larceny, see id.—it is difficult to

claim they were against delegations of authority over

“private rights.”

Whenever early Congresses created new territories, they routinely empowered their officials to adopt

such rules. See id. at 336. No one protested that nonlegislative actors were unconstitutionally making

laws, although Congress alone is empowered to “make

all needful Rules and Regulations respecting the Territory or other Property belonging to the United

States.” U.S. Const. art. IV, § 3, cl. 2. And if the

Founders thought nondelegation had less purchase

when it came to the territories, then surely someone,

somewhere, would have said as much. No one ever did.

3. Refinancing the National Debt

“Delegation was the First Congress’s solution to

what was arguably the greatest problem facing our

fledgling Republic: a potentially insurmountable national debt.” Christine Kexel Chabot, The Lost History

of Delegation at the Founding, 56 Ga. L. Rev. 81, 81

(2021).

To help pay off the nation’s immense foreign debt,

Congress authorized the president to borrow up to $12

million in new loans, Act of Aug. 4, 1790, ch. 34, § 2,

1 Stat. 138, 138, and to make other “contracts respecting the said debt as shall be found for the interest of the

[United] States,” id. (emphasis added). Twelve million

dollars was an immense sum—equaling approximately $1.286 trillion today. Chabot, supra, at 124.

And the only limit on the president’s authority was a

fifteen-year cap on the life of any restructured loans.

Act of Aug. 4, 1790, § 2, 1 Stat. at 139. Key questions

about the terms of new loans and the repayment of existing ones were all left to the president’s complete discretion. In other words, Congress delegated to the

president the power to restructure the nation’s foreign

debt on terms that he thought best, with parties he

thought best, under conditions he thought best. See

Mortenson & Bagley, supra, at 344-45.

The First Congress also delegated broad policymaking authority to refinance the domestic debt. See

Act of Aug. 12, 1790, ch. 47, 1 Stat. 186, 186-87. It

vested this authority in the president and the other

members of a body known as the Sinking Fund Commission. Id. § 2, 1 Stat. at 186. Specifically, the president and the commission could purchase debt “in such

manner, and under such regulations as shall appear to

them best calculated to fulfill the intent of this act.”

Id. Thus, the entire responsibility for Congress’s plan

to reduce the public debt was vested in a commission

given no meaningful guidance.

By delegating “decisions regarding borrowing and

payment policies of the utmost importance to the national economy,” Chabot, supra, at 81, Congress essentially instructed the executive branch to set national

fiscal policy as it saw best. As James Madison said,

the borrowing power alone was a delegation of “great

trust,” involving the “execution of one of the most important laws.” 12 Documentary History of the First

Federal Congress of the United States of America 1349,

1354 (Linda Grant DePauw et al. eds., 1972).

The debt legislation did prompt a constitutional

discussion in Congress, where one legislator questioned “whether [Congress was] authorized to delegate

such important power.” Id. at 1349. But Madison and

others supported the delegation, given that Congress

had capped the amount to be borrowed, id. at 1351,

ensuring that it was delegating “less than its whole

borrowing power.” Chabot, supra, at 119.

4. Granting Patent Rights

To foster commercial innovation and cultivate the

nation’s economy, the Constitution empowered Congress to secure to authors and inventors “the exclusive

Right to their respective Writings and Discoveries.”

U.S. Const. art. I, § 8, cl. 8.

The First Congress promptly delegated this crucial power over the commercial life of the United

States to a three-member board of executive officials,

giving it (“or any two of them”) the power to grant patents of up to fourteen years, with the only guidance

being that the officials must “deem the invention or

discovery sufficiently useful and important.” Act of

Apr. 10, 1790, ch. 7, § 1, 1 Stat. 109, 110. Once a patent was granted, all other Americans were deprived

of the “right and liberty of making, constructing, using

and vending . . . the said invention or discovery.” Id.

Patentees could sue infringers and recover damages.

Id. § 4, 1 Stat. at 111.

In other words, Congress left three executive officials to decide for themselves what counted as “sufficiently useful and important” to warrant a legally enforceable monopoly—a mandate that “certainly leaves

a lot of discretion” to “alter the rights of private persons.” Wurman, supra, at 1548; see Edward C. Walterscheid, Patents and the Jeffersonian Mythology, 29

J. Marshall L. Rev. 269, 280 (1995) (the patent board

was “left almost entirely to its own devices”).

Exercising its delegated power, the executive

branch crafted substantive and procedural standards

that were nowhere to be found in the statute. See

Mortenson & Bagley, supra, at 339; Chabot, supra, at

142-46 (describing the board’s resolution of steamboat

technology questions that “rendered . . . inventors’ interests in existing state patents worthless”).

5. Remitting Penalties for Customs and

Maritime Commerce Violations

The bulk of the early federal government’s income

came from customs duties, and Congress accordingly

devoted great attention to establishing a system of customs enforcement. Having done so, however, Congress

gave the executive branch the “authority to effectively

rewrite the statutory penalties for customs violations,”

delegating “Congress’s own authority to determine

what financial punishments the government would

impose on private individuals for violations of the law.”

Kevin Arlyck, Delegation, Administration, and Improvisation, 97 Notre Dame L. Rev. 243, 306, 249

(2021).

Under the Remission Act, if the Treasury Secretary concluded that a violator acted without “intention

of fraud,” he could impose as much or as little of the

penalty as he “deem[ed] reasonable and just.” Act of

May 26, 1790, ch. 12, § 1, 1 Stat. 122, 122-23. No further standards were prescribed, and there was no appeal from the Secretary’s decisions.

Moreover, Congress “repeatedly reauthorized the

Act on a temporary basis, and it was subject to

renewed challenge—including on nondelegation

grounds—before finally becoming permanent in 1800.”

Arlyck, supra, at 7; see id. at 27 (describing failed nondelegation objection by one congressman in 1797).

As Joseph Story later wrote, the “power to remit

penalties and forfeitures [was] one of the most important and extensive powers” of the government,

which could “be exercised only in the cases prescribed

by law.” The Margaretta, 16 F. Cas. 719, 721 (C.C.D.

Mass. 1815) (Story, C.J.). And the discretion the Act

conferred was not a matter of mere fact finding. Story

contrasted this discretion with the “[v]ery different”

terms of another statute, under which remission was

“mandatory . . . where the facts of the cases are

brought within the statute,” and “[i]f he is satisfied of

the existence of such facts, he has no further discretion, but is bound to remit.” Id. In other words, the

Remission Act “allowed the Executive to go beyond the

safe realm of factual investigation to make political

judgments about what is ‘unfair’ or ‘unnecessary.’”

Am. Railroads, 575 U.S. at 85 (Thomas, J.).

6. Other Delegations by the First

Congress

In many other areas, Congress likewise delegated

broad policymaking authority to the executive branch,

with little or no specific guidance, and with barely (if

any) constitutional objections being raised.

The First Congress repeatedly authorized executive officers to invade private property without a warrant and with little or no direction. To enforce taxes

on domestic distilled spirits, Congress empowered officers to enter “all . . . houses, store-houses, [and]

ware-houses” in daytime to examine “the quantity,

kinds and proofs of the said spirits therein contained.”

Act of Mar. 3, 1791, ch. 15, § 29, 1 Stat. 199, 206. Congress said nothing about the circumstances in which

officers should employ this power.

Similarly, to enforce customs duties, port inspectors could board arriving ships “to examine the cargo

or contents” and “perform such other duties according

to law, as they shall be directed,” Act of Aug. 4, 1790,

ch. 35, § 30, 1 Stat. 145, 164, while other officers could

board “every ship or vessel” approaching the United

States “to search and examine the same and every part

thereof,” id. § 64, 1 Stat. at 175. Again, Congress laid

down no meaningful guidance about the circumstances

in which ships should be searched—effectively permitting the executive branch to craft those rules.

Although legislatures traditionally decided who

should be placed on pension lists, Congress authorized

the president to identify disabled military members to

include on “the list of the invalids of the United States,

at such rate of pay, and under such regulations as shall

be directed by the President.” Act of Apr. 30, 1790,

ch. 10, § 11, 1 Stat. 119, 121. Apart from limiting the

size of awards, Congress offered little guidance.

For wounded veterans of the Revolutionary War,

Congress delegated even more flexibility—specifying

only that pensions begun under the Articles of Confederation should continue “under such regulations as the

President of the United States may direct.” Act of

Sept. 29, 1789, ch. 24, 1 Stat. 95, 95. No guidance was

given concerning the content of these “regulations.”

And although other aspects of this pension regime garnered constitutional scrutiny, at no point did anyone

raise a nondelegation objection. See Mortenson & Bagley, supra, at 343-44.

The First Congress also authorized the president

“to call into service from time to time” whatever portions of the state militias “he may judge necessary” for

“protecting the inhabitants of the frontiers.” Act of

Apr. 30, 1790, ch. 10, § 16, 1 Stat. 119, 121. That is,

Congress authorized the president to call up any state

militias he pleased, at any time, in any numbers, to

wherever on the frontier he pleased, so long as he acted

in furtherance of Congress’s general goal.

This list could go on and on. Sweeping delegations

by the First Congress were anything but rare—they

were routine.

And notably, the House of Representatives passed

these statutes even as it approved a constitutional

amendment stating in part that the executive branch

“shall not exercise . . . the power vested in the Legislative” branch. 1 Annals of Cong. 789 (1789). The House

does not seem to have thought that the executive

branch impermissibly “exercise[d]” Congress’s “Legislative” powers, id., when it wielded the authority to

fashion policies under a statute.

B. Delegations of Authority by Later

Congresses

1. Direct Taxation

Facing another threatened fiscal shortfall in 1798,

Congress exercised its power to levy a “direct tax” on

property. See Act of July 9, 1798, ch. 70, § 8, 1 Stat.

580, 585. Yet again, Congress delegated broad and coercive rulemaking authority, in what was unequivocally the domestic sphere.

The direct tax “fell upon literally every farmer,

homeowner, and slaveholder” in the nation, subjecting

them “to federal rulemakings that could determine

their tax liabilities.” Nicholas R. Parrillo, A Critical

Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, 130 Yale

L.J. 1288, 1302 (2021). To ensure that direct taxes

were apportioned among the states, Congress established an “administrative army” to estimate the value

of virtually “all private real estate in every state.” Id.

at 1332-33; see Act of July 9, 1798, § 8, 1 Stat. at 585.

To further ensure that valuations were consistent,

Congress empowered commissioners “to revise, adjust

and vary” these valuations by altering their tax burdens “as shall appear to be just and equitable.” Id.

§ 22, 1 Stat. at 589.

The statute did not define “just and equitable,”

and the subjective nature of real estate valuation

meant that just about any approach could merit that

label. Parrillo, Assessment, supra, at 1304. The only

requirement was that the “relative valuations” of properties within an assessment district could not be altered. See Act of July 9, 1798, § 22, 1 Stat. at 589.

The valuation boards used their authorities in a

“dramatic and sweeping” fashion. Parrillo, Assessment, supra, at 1306. Although their determinations

decided the amounts that Americans would owe, with

no opportunity for review, no one objected on delegation grounds. Id. at 1312.

2. Embargoes

In 1794, Congress gave the president unilateral

and largely unfettered authority (“under such regulations as the circumstances of the case may require”)

to keep every ship in the nation at dock, authorizing

him to lay an embargo “on all ships and vessels in the

ports of the United States” whenever, “in his opinion,

the public safety shall so require” and Congress was

out of session. Act of June 4, 1794, ch. 41, § 1, 1 Stat.

372, 372.

An especially clear example of delegating the

power to issue binding rules for private persons—on a

matter of great economic and political importance—

the statute was entirely open-ended, beyond its vague

requirement that the president perceive a threat to

“public safety.” Yet no constitutional objection was

recorded to the delegation.

3. Quarantine Power

The nation’s first quarantine law empowered the

president “to aid in the execution of quarantine, and

also in the execution of the health laws of the states

. . . in such manner as may to him appear necessary.”

Act of May 27, 1796, ch. 31, 1 Stat. 474, 474 (emphasis

added). That mandate “permitted the Executive to

make trade-offs between competing policy goals.” Am.

Railroads, 575 U.S. at 79, 85 (Thomas, J.). But while

the bill provoked fierce debate about the scope of the

federal government’s commerce power, see Mortenson

& Bagley, supra, at 356-58, there was no delegationrelated objection.

IV. Attempts to Reconcile Early Statutes with

Modern Proposals for Strict Delegation

Limits Hinge on Distinctions that the

Founders Rejected.

As shown above, broad delegations of rulemaking

authority were ubiquitous in the nation’s first decade

in areas of great economic and political significance.

Proponents of a strict nondelegation doctrine often

concede that these statutes conferred expansive policymaking discretion. But to explain this evidence

away, they argue that these statutes all fall within categories in which nondelegation limits supposedly are

diminished or nonexistent. These categories include

(1) topics like military and foreign affairs that overlap

with executive power, (2) government operations or

benefits, as opposed to the regulation of private conduct, and (3) mandates to fill in details, as opposed to

resolving “important subjects.” Without these carveouts, it is impossible to reconcile Congress’s early practice with a robust nondelegation doctrine.

But these exceptions are entirely a modern invention. No one made such distinctions in the Founding

era. Nor did anyone invoke them to justify early congressional delegations. On the contrary, even the few

legislators who raised delegation concerns in early debates rejected these distinctions. These categories are

merely an attempt at post hoc rationalization—distortions of history that mold evidence to fit a conclusion,

instead of the other way around.

A. Private Rights

Some have argued that delegation is prohibited

only where it implicates private rights and conduct.

Text and history foreclose that notion—decisively.

To begin, this artificial limitation cannot be reconciled with the text of Article I. The “legislative Powers” it confers, U.S. Const. art. I, § 1, include all forms

of sovereign authority, affecting both public and private rights and drawing no distinction between them.

Id. art. I, § 8. So too for the Constitution’s express limitations on Congress’s legislative powers. See id. art. I,

§ 9. It is simply not true, therefore, that “[w]hen it

came to the legislative power, the framers understood

it to mean the power to adopt generally applicable

rules of conduct governing future actions by private

persons.” Gundy v. United States, 139 S. Ct. 2116,

2133 (2019) (Gorsuch, J., dissenting).

Even if constitutional text permitted it, there is no

historical support for this definition of legislative

power. See, e.g., Parrillo, Supplement, supra, at 5

(dissecting each citation offered for this definition in

the Gundy dissent); Samuel Johnson, A Dictionary of

the English Language (6th ed. 1785) (defining “Legislative (adj.)” solely as “Giving laws; lawgiving”).

More to the point, proponents of nondelegation

have been unable to identify a single statement from

the Founding era that suggests any distinction in delegation limits between legislation that regulates private conduct and legislation that does not. Amicus is

similarly unaware of any such evidence.

Even worse, the historical record refutes claims

that any such distinction mattered to the Founders.

The most substantial debate over delegation occurred

in the Second Congress, in response to a proposal to

allow the president to decide the routes of federal post

roads. See infra at 29-30. That proposal involved government operations and benefits—not “rules of conduct governing future actions by private persons.”

Gundy, 139 S. Ct. at 2133 (Gorsuch, J.). “If there had

been a consensus view that Congress could broadly

delegate legislative authority to the executive when

‘privileges’ were at issue,” the objections raised to the

proposal “would have been pointless. And the proposal’s supporters would likely have invoked the exception, instead of defending the proposal on the

ground they actually did.” Arlyck, supra, at 294.

Meanwhile, Congress repeatedly delegated broad

authority to fashion rules governing private conduct.

See supra Part III. Yet these bills prompted few (or no)

constitutional concerns, and none on the ground that

authority over “private rights” could not be delegated.

B. Military and Foreign Affairs

Another effort to reconcile early legislation with a

nondelegation rule rests on the idea that Congress

may delegate discretion “over matters already within

the scope of executive power.” David Schoenbrod, The

Delegation Doctrine: Could the Court Give It Substance?, 83 Mich. L. Rev. 1223, 1260 (1985).

Once again, no one articulated such a distinction

in the Founding era. See Arlyck, supra, at 289-90

(debunking the few citations that have been suggested

as indicating such a belief). The concept is instead a

modern creation, tracing its roots to a twentieth-century decision, United States v. Curtiss-Wright Exp.

Corp., 299 U.S. 304 (1936), which does not actually

support it, see id. at 315 (upholding a delegation concerning trade with foreign nations but expressly not

addressing whether a comparable domestic delegation

would be invalid).

Moreover, once again the historical evidence that

does exist is plainly contrary, demonstrating that the

Founding generation did not recognize any such distinction. Nearly all of the early objections to presidential delegations were made precisely in the context of

bills implicating the military or foreign relations:

a 1794 bill allowing the president to raise troops, see

Mortenson & Bagley, supra, at 361 n.471; a 1798 statute empowering the president to raise a provisional

army, id. at 360-63; and the notorious Alien Act, id. at

364-66. Yet “in no case did proponents of the proposed

legislation defend it on grounds of a delegation exception for military and foreign affairs.” Arlyck, supra, at

291.

The facts are inescapable: “all known articulations

of the nondelegation principle by federal lawmakers in

the 1790s occurred in foreign, military, or non-coercive

areas that today’s nondelegation proponents consider

exceptions to the doctrine.” Parrillo, Supplement, supra, at 13. These purported exceptions contradict the

only evidence of nondelegation sentiment at the

Founding.

C. “Important Subjects”

Some have claimed that the Constitution distinguishes between “important policy decisions,” which

Congress must resolve itself, and “filling up details

and finding facts,” which Congress may delegate.

Gundy, 139 S. Ct. at 2145, 2148 (Gorsuch, J.). This too

lacks any basis in original meaning.

No evidence from the Founding era has ever been

unearthed to support an “important subjects” theory.

Even as Congress enacted statute after statute granting immense discretion on crucial issues of national

policy—and even as some lawmakers voiced reservations about certain delegations—there is no record of

anyone discussing delegation limits in terms of the

subjective importance of the matters delegated.

Indeed, efforts to turn up evidence of an “important subjects” doctrine at the Founding backfire.

Professor Wurman, for example, cites a single remark

made in the Second Congress during the post roads debate, which seemed to suggest that the routes of the

roads were more “important” than the locations of the

post offices along those roads. 3 Annals of Cong. 230

(1791) (Rep. Livermore). But in the same breath, this

speaker foreclosed any constitutional distinction based

on importance: “the Legislative body being empowered

by the Constitution ‘to establish post offices and post

roads,’ it is as clearly their duty to designate the roads

as to establish the offices.” Id. at 229 (emphasis added).

Moreover, as shown above, the First Congress delegated major policy questions concerning the nation’s

most pressing issues, such as patent rights and the national debt, with little or no controlling guidance. So a

rule against delegating “important subjects” cannot

stand alone: it works only in tandem with other artificial limiting principles like those discussed above.

E.g., Wurman, supra, at 1538 (suggesting that “rules

of private conduct” are inherently nondelegable

“[i]mportant subjects”).

In lieu of supporting evidence from the Founding,

proponents of an “important subjects” rule have seized

on a passage from Wayman v. Southard, 23 U.S. 1

(1825). But this ambiguous dicta from a case decided

decades after Ratification does not supply the missing

foundation for the rule.

To start, Wayman was not a nondelegation case; it

was a federalism case, involving a statute that required federal courts to follow existing state court procedures, subject to their own alterations.

The

plaintiffs insisted that federal courts also had to follow

newly adopted state procedures, and they further argued that allowing the courts to alter such procedures

would give them legislative authority. Id. at 13-16.

It is not correct that Wayman “upheld the statute

before it because Congress had announced the controlling general policy when it ordered federal courts to

follow state procedures, and the residual authority to

make ‘alterations and additions’ did no more than permit courts to fill up the details.” Gundy, 139 S. Ct. at

2136 (Gorsuch, J.). Wayman explained, rather, that

“the right of the Courts to alter the[ir] modes of proceeding . . . does not arise in this case,” because “[t]he

question really adjourned” was whether newly enacted

state laws could indirectly dictate those procedures.

23 U.S. at 48. The nondelegation argument was rejected because it proved too much. Id. at 47-48 (“If

Congress cannot invest the Courts with the power of

altering the modes of proceeding of their own officers,

. . . how will gentlemen defend a delegation of the same

power to the State legislatures?”).

As for Wayman’s suggestion that there are “important subjects, which must be entirely regulated by

the legislature itself,” the opinion offers no citation, no

examples of what those might be, or even any indication of what qualities are relevant, saying only that the

line distinguishing them “has not been exactly drawn.”

Id. at 43. Those tentative musings betray the absence

of any widely shared principles concerning delegation

limits even in the nineteenth century. See id. at 46

(calling the topic “a subject of delicate and difficult inquiry, into which a Court will not enter unnecessarily”).

The irrelevance of Wayman’s dicta is illustrated by

this Court’s approval, two years later, of a statutory

delegation from the 1790s, which contained some of

the only language that prompted nondelegation objections in that era. See Mortenson & Bagley, supra, at

360-62. Writing for a unanimous Court, Justice Story

rejected any claim that Congress could not delegate decisions over raising the militia to the president, Martin

v. Mott, 25 U.S. 19, 29 (1827) (“there is no ground for a

doubt on this point”), without citing Wayman or employing an “important subjects” framework. See id.

(“The power thus confided by Congress to the President, is, doubtless, of a very high and delicate nature.”).

The reliance that nondelegation proponents have

placed on Wayman—ambiguous dicta in a single decision more than three decades after Ratification—only

underscores the lack of Founding-era support for an

“important subjects” rule.

V. The Post-Ratification Efforts of a Small

Minority of Politicians to Create a

Nondelegation Doctrine Were Unsuccessful.

Against the all-but-conclusive evidence of the statutes enacted in the nation’s first decade, supporters of

nondelegation have pointed to discussions that took

place in the House of Representatives during this period. Such discussions contain the only evidence of

anyone in the Founding era suggesting constitutional

limits on statutory delegations. That evidence, however, undermines rather than supports the existence

of any shared belief in delegation limits.

As discussed, the vast majority of the early statutes prompted no delegation objections at all, even as

they handed off rulemaking authority over some of the

most important matters in the new Republic. Increasingly during the 1790s, however, delegation arguments began to pop up sporadically in legislative debates, raised by a small number of congressmen.

These arguments, however, were voiced rarely, were

almost always peripheral, and repeatedly failed.

Moreover, they were typically vague and self-contradictory, as pointed out by their opponents. Rather

than revealing a broad preexisting consensus on delegation principles, the very novelty (and failure) of

these arguments shows the opposite.

Take, for instance, a discussion in the Second Congress about legislation establishing a postal system—

the most frequently cited example of a nondelegation

objection in the early Republic. In brief, lawmakers

crafted a bill setting forth in painstaking detail the

towns through which the post roads would run. They

rejected a proposal to instead leave the designation of

these routes up to the president. 3 Annals of Cong.

229, 241 (1791). In the preceding debate, however, no

more than a handful of members invoked constitutional concerns about delegation. And far from indicating some shared understanding, these arguments

“astonished” their opponents, id. at 235 (Rep. Barnwell), who pointed out their inconsistency with constitutional text, e.g., id. at 236 (Rep. Benson) (explaining

that Article I made no distinction between “post offices

and post roads,” and yet the bill left the locations of the

offices entirely up to the executive), and with precedent, e.g., id. at 232 (Rep. Bourne) (explaining that the

proposed delegation was similar to one concerning tax

districts in the previous year’s distilled spirits statute). See Mortenson & Bagley, supra, at 350-55.

Moreover, while this particular proposal was defeated, the enacted statute delegated unfettered discretion to the executive branch to designate the locations of additional post roads, as well as all post

offices, see Act of Feb. 20, 1792, ch. 7, §§ 2-3, 1 Stat.

232, 233-34, making it difficult, if not impossible, to

read the rejection of the earlier amendment as an

endorsement of the constitutional objection. See U.S.

Const. art. I, § 8, cl. 7 (giving Congress the legislative

power to “establish Post Offices and post Roads” (emphasis added)).

Nothing about the post roads debate suggests

common acceptance of a nondelegation doctrine among

the Founders—much less its nature or scope. Cf.

Wurman, supra, at 1514 (claiming only that the “best

reading” of the evidence “is that there probably was

some version of a nondelegation doctrine, although not

everyone agreed on the principle’s contours”).

Later debates are no more helpful. Whether the

subject was raising volunteer armies or summarily expelling noncitizens, constitutional arguments against

delegation were always peripheral and voiced by a

small minority of congressmen, and they consistently

failed. See Mortenson & Bagley, supra, at 360-66.

They supply no foundation for an unwritten constitutional rule against delegation—or its enforcement

through a “major questions” doctrine.

CONCLUSION

For the foregoing reasons, this Court should reject

Petitioners’ arguments concerning constitutional limits on delegation.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

BRIAN R. FRAZELLE

MIRIAM BECKER-COHEN

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

January 25, 2022

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.