In 2019, Julian Mortenson and Nicholas Bagley made public their widely-discussed article (formally published in 2021) in which they concluded that there was no Founding-era non-delegation doctrine. They found no bounds to the extent a Founding-era legislature could delegate its power, so long as the legislature did not permanently alienate that power.
In January 2020, I responded on this site. I noted some problems with their research and their conclusions. But I added that perhaps non-delegation advocates were misguided in seeking a single non-delegation principle for all of Congress’s powers. I wrote:
It is fundamental that the Constitution does not delegate to Congress “the legislative power.” Rather, it delegates about thirty discrete legislative powers . . . . Specific words and phrases define the scope of each of these powers. The framers were careful drafters, and most of these words and phrases were borrowed from contemporaneous legal or governmental practice. For example, to “regulate Commerce” was an Anglo-American legal phrase embracing the law merchant, protective tariffs, governance and facilitation of navigation, and certain related subjects. Similarly, the framers borrowed the phrase “establish Post Offices and post Roads” from British postal statutes. It encompassed building post offices and intercity roads, designating postal routes and tolls, hiring employees, enacting criminal penalties for misuse of the postal service—everything necessary and customary to develop a working postal system and an intercity highway system.
The extent to which each enumerated power authorized Congress to delegate to executive sub-agents depended on the constitutional words describing the power.
In 2021, Professor Chad Squitieri published a law review article reaching—independently, I assume—a similar conclusion. As Professor Squitiri wrote in his Abstract:
When discussing the nondelegation doctrine, courts and scholars frequently refer to Congress’ “legislative power.” The Constitution, however, speaks of no such thing. Instead, the Constitution vests a wide variety of “legislative powers” (plural) in Congress . . .
As I had, Professor Squitieri advocated that the extent of permissible delegation for each legislative power should be ascertained from the relevant text and surrounding circumstances.
We are indebted to Professor Squitieri for thus furthering the debate. I do, however, wish to address what I see as a shortcoming. That shortcoming is his use of the Necessary and Proper Clause as a sort of omnibus delegation vehicle for each enumerated power. He writes:
This Necessary and Proper Clause provides the text-based standard for determining how Congress can delegate its Article I, Section 8 powers. The key nondelegation question for the legislative powers enumerated in Article I, Section 8 is therefore as follows: Whether an objective reader in 1788 would have understood a particular delegation to be a “necessary and proper” means of “carrying” a particular Article I, Section 8 power “into execution.”
As some readers know, I concluded long ago that—contrary to prevailing modern orthodoxy— founding generation lawyers construing a document usually preferred the parties’ subjective understanding over the document’s objective meaning, for Qui haeret in litera, haeret in cortice. (pdf) Because the Constitution was drafted to be construed by then-prevalent interpretive methods, I likewise think we should apply the ratifiers’ subjective understanding when available and coherent. But that is not the point I wish to make today.
In statements such as the one just quoted, Professor Squitieri effectively treats each legislative power as having two components: (1) a general description of the power and (2) the Necessary and Proper Clause authorization to legislate in that area.
I will admit that the framers sometimes drafted in that manner. In Article III, Section 2 they first listed the components of “the judicial Power” and afterwards formally granted those components. (I do not subscribe to the theory that the first sentence of Article III itself vests authority (pdf).) However, the first 17 clauses of Article I, Section 8 (and Congress’s other powers) are not merely recitals to be carried into effect by congressional action under the Necessary and Proper Clause.
The Nature of the Necessary and Proper Clause
In 2004, I published “The Agency Law Origins of the Necessary and Proper Clause” (pdf). Since then, my work has been supplemented and confirmed by a substantial amount of published research on the subject—not just by me, but also by Gary Lawson, Guy Seidman, and Geoff Miller. (See, for example, this book.)
Our underlying findings are pretty much consistent:
- During the Founding Era the term “necessary” in this context was a synonym for “incidental.”
- As several leading Founders pointed out, the Necessary and Proper Clause granted no additional authority to Congress. It simply told the reader that the doctrine of incidental authority, which usually inhered in enumerated-power documents, also applied to the Constitution. This distinguished the Constitution from the Articles of Confederation, which had explicitly excluded incidental authority.
- Incidental powers were those both (1) “less worthy” than those mentioned explicitly (“principal powers”) and (2) tied to their principals by custom or reasonable necessity.
- The meaning of “proper” is less certain. It appears to mean that congressional legislation exercising incidental powers must be consistent with then-understood duties of public trust. For example, regulating an incidental activity must be done for the bona fide purpose of governing an activity within Congress’s explicit authority to govern. It must not be a pretext to serve some unenumerated purpose.
Unfortunately, Professor Squitieri’s article shows no awareness of those research findings.
Application to Non-Delegation
Because the Necessary and Proper Clause is merely a rule of construction, the scope of each power the Constitution grants should be determined from the wording and ambient history of that power alone. There is no need to consult the Necessary and Proper Clause except as a reminder that Congress may regulate incidents in a good faith effort to regulate principals. In exercising the Commerce Power, for example, surely Congress may require labeling standards, even though labeling is technically production or packaging rather than “commerce.”
Assuming that Professor Squitieri and I are correct about the hypothesis we hold in common, we originalists have some work to do. To be sure, some of that work already has been done: An example, as I mentioned in my 2020 entry and elaborated here (pdf), is the scope of the power to “establish” post offices and post roads. The breadth of that scope (see above) suggests that the Congress’s ability to delegate in that area is limited—because the Constitution grants only to Congress, not to any other entity, the power to “establish.”
On the other hand, the enumerated power to “provide and maintain a Navy” contemplates Congress as playing principally a funding role, delegating extensively to executive-branch officers—a conclusion fortified by the Constitution’s designation of the President as commander-in-chief. (I address the Founding-era meaning of “provide” here (pdf).)
For other powers, however, the research has not yet been done. For example, to what extent does the “Power To lay and collect Taxes, Duties, Imposts and Excises” comprehend power to delegate that authority to the President? And does the answer differ according to the nature of the financial exaction?
In short, I believe Professor Squitieri is likely correct in his most important conclusion: The scope of permissible delegation must be determined from the text of each power and the surrounding context. But there is no need to insert the Necessary and Proper Clause into the equation, except as a useful reminder.
Posted at 6:12 AM