At Law & Liberty, Chad Squitieri (responding to John McGinnis): Nondelegation Doctrines. From the introduction:
What comes next for the nondelegation doctrine? In “Nondelegation Without Chaos,” Professor John O. McGinnis offers some characteristically insightful thoughts. In particular, he outlines obstacles standing in the way of a reinvigorated nondelegation doctrine, and offers a proposed means of overcoming them. While I agree with much of his analysis, he overlooks one of the most important obstacles to reinvigorating the nondelegation principle, and I wish to offer an alternative means of reinvigorating the nondelegation principle. I am therefore pleased to accept the editors’ invitation to offer this response.
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McGinnis and I agree on a good deal. But I will focus here on three points of (rare) disagreement. The first relates to his identification of the relevant obstacles. The second and third relate to his proposed solution.
And from later on:
Having outlined three points of disagreement, I will conclude by offering an alternative solution that might be of interest to McGinnis and other originalists. To state my proposal in brief terms: the current nondelegation doctrine should be transformed into multiple nondelegation doctrines, with each doctrine corresponding to one of the many different legislative powers vested in Congress.
My proposal offers a judicially manageable standard because it would require courts to hue more closely to an originalist understanding of the Constitution’s text. As Professor Robert Natelson has observed, “the Constitution does not delegate to Congress ‘the legislative power.’” Instead, and as was quoted above, Article I vests Congress with “all legislative powers” (plural) “herein granted.” The Constitution then specifically enumerates various “legislative powers” granted to Congress. Crucially, the Constitution uses different words to grant different legislative powers. And because those different words have different original meanings, originalist jurists should be open to the possibility that those different meanings might allow Congress to delegate different powers in different ways.
For example, the historical context surrounding domestic taxation might indicate that Congress could rely heavily on executive officials (e.g., tax collectors) to exercise Congress’s Article I power to “collect taxes,” but rely less heavily on executive officials to make policy decisions concerning how much domestic tax revenue should be raised in the first place. More specifically, and as I have argued elsewhere, the relevant nondelegation tests should run through the text of the Necessary and Proper Clause—at least for those legislative powers vested by the original Constitution. Thus, the text-based nondelegation tests for the legislative powers granted to Congress in the original Constitution would track the language of the Necessary and Proper Clause by asking whether a particular statute constitutes a “necessary and proper” means of carrying a particular legislative power “into execution.”
Posted at 6:14 AM