Advisory Opinions - The Nondelegation Rumble

Episode Date: February 22, 2021

Originalists have recently come under fire for trying to reinvigorate an old principle in administrative law called the nondelegation doctrine, which holds that Congress cannot delegate its own legislative power to other entities. Are originalists correct in claiming that the nondelegation doctrine was present at the founding? What does the historical record have to say about it? Why should living constitutionalists even care about this debate? Nicholas Bagley, a law professor at the University of Michigan, and Ilan Wurman, an associate professor at the Sandra Day O'Connor College of Law at Arizona State University, join the show to answer all of these questions and more. Show Notes: -“There’s No Historical Justification for One of the Most Dangerous Ideas in American Law” by Nicholas Bagley and Julian Davis Mortenson in the Atlantic. -“Delegation at the Founding” by Nicholas Bagley and Julian Davis Mortenson in Columbia Law Review. -“No Nondelegation at the Founding? Not so fast,” by Ilan Wurman in the Yale Law Journal. -Schechter Poultry Corp. v. United States. -Above the Law. -The Second Founding: An Introduction to the Fourteenth Amendment by Ilan Wurman. Learn more about your ad choices. Visit megaphone.fm/adchoices

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you ready i was born ready And start discovering your family story today. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger and wow. That's all I'm saying, Sarah. Wow. We just recorded a debate on the non-delegation doctrine that you're going to hear in just a few minutes between Nick Bagley and Elon Wurman. Nick Bagley, University of Michigan, Elon Wurman, Arizona State University. That was really something else. And I have to say, I'm so glad we did it because I don't know about you, Sarah, but I got a lot of messages from people saying how much they

enjoyed the non-delegation discussion in our last podcast. So now we have two of the leading scholars in the country on the issue debating, as I say in a minute, they're the Ali and Foreman of non-delegation doctrine, and it's fantastic. Yeah, and look, both of these guys have so much. So if you enjoy the debate, check out the other stuff they've written. So I don't mention this in the debate, but Elon, for instance, has this great book called The Second Founding, An Introduction to the 14th Amendment that has just come out. It is not a pop legal book. It's an actual legal book, but it's not a law textbook either. So if you're interested in privileges and immunities clause, substantive due process, These guys are not just non-delegation people. So I just think they're both so great. Really, really enjoy both of their legal thoughts and writings. And so in addition to that, we're going to just briefly cover some stuff that we're actually

going to kind of put a pin in it because there's a lot of interesting stuff happening that matters in people's lives and matters in politics. So just right off the top, we've got a couple of interesting SCOTUS grants and SCOTUS denials. One is SCOTUS has taken up the challenge to the Trump administration Title 10 regulations. This was a pro-life measure put in place by the Trump administration restricting and regulating abortion referrals by entities that receive family planning funds under Title 10, a federal law. This is something that's kind of been batted back and forth for some time in American law. So there's a cert grant there to keep an eye on.

Although my question, Sarah, is how long will the Biden administration keep that rule in place? So will we actually have a case? Yeah, you know, bear in mind, anything that's granted cert right now will not generally get heard until the fall, barring some, you know, crazy change because the last arguments happened in March. So, yeah, there's a long time to go until we would see a decision in that case. It's possible that we're 16 months away from a decision in that case. And also another big move, the Supreme Court rejected Trump's last gasp attempt to shield all his financial records from the Manhattan District Attorney,

Cyrus Vance. So it's going to have to turn those over. And that goes back to something we talked about last podcast, sort of the most dangerous of the investigations of Trump right now, at least in my view. And then there are a couple of cases that are winding their way up to the Supreme Court that are worth a discussion. And because we have this awesome debate coming, we don't have time to really dive in. But one of them is dealing with the Supreme Court is going to be asked to decide, or has been asked to decide, when does a racial slur in the workplace amount to illegal discrimination? Now, why is this interesting? Because this hits all of us where we live on what is or is not hostile environment, racial harassment, for example, or sexual harassment.

It's an incredibly, it's a part of the law that touches all our lives in ways that many other legal doctrines that we discuss don't because it regulates all of our workplace or the vast majority of our workplaces. That's going to be very interesting. And then also, a ACLU-backed group has asked the Supreme Court to declare the all-male military draft unconstitutional. All-male military draft.constitutional. All-male military draft. We've been waiting for this. This has been a long time coming. This has been decades coming. This has been Ruth Bader Ginsburg original coming

because it is really the last really obvious de jure gender discrimination in law where like it is men get draft cards women do not um and uh you know it's a it's a biggie it's a biggie so it's a biggie on two reasons it's a and and i can't wait to dive into this one. It's a biggie one, because exactly what you said, Sarah, this is rarely do you have by law, something so starkly different than the conscription responsibility. I'm hovering in the background, and this is something we'll talk about a little bit. Recent Heritage Foundation report, 71% of young Americans between the ages of 17 and 24 are ineligible to serve in the military because of criminality, because of health slash obesity, 71%. And so put a pin in that. I'm going to talk about how that may actually be decisive in the

case, potentially. Maybe, probably not, but potentially. I can see a path where that is a a really critical evidentiary element um so let's put that put a pin in that and then also we have opinions coming on wednesday um that we're going to talk about and then also on uh on well opinions coming on wednesday we'll talk about thursday and then on thursday we're going to have William Bode from the University of Chicago to talk about the shadow docket in the land of Mordor, where the shadows lie, is the shadow docket, Sarah, of the Supreme Court of the United States. And I don't know about you, but I'm super excited about that conversation. So excited. So there's a lot.

And without further ado, this is honestly the podcast. This is the place to be this week. I mean, every week, but especially this week. And so without further ado, let's roll in to the premier debate on non-delegation in the United States today here on the Advisory Opinions Podcast. Let's go. Okay, so as we teased just moments ago, it's time for the main event. And how did the main event unfold? I'm sitting there minding my own business, just sort of cruising through Twitter very rarely as I just occasionally do. And there's Sarah, very busy on Twitter.

And next thing I know, as in real time, it's unfolding this potential planning for what you are about to, I was going to say witness, but it's not a video podcast, what you're about to hear, which might be, I don't know, is it one of America's first debates on originalism and

non-delegation doctrine? It's certainly the premier debate on it. The premier. It is the flagship debate in American history on originalism and non-delegation doctrine is here. sarah can you introduce the ali and foreman of non-delegation doctrine for the thriller in manila we should probably have a trigger warning at the beginning of this because the topic is so sexy so sensual i mean channing tatum might as well be dancing in this podcast um because i mean truly this is going to be this a super interesting, fun topic if you're a nerd. So, as you guys know, last week we talked about this Atlantic piece called There's No Historical Justification

for One of the Most Dangerous Ideas in American Law. Now, a little click-baity on the topic. Just a tiny. The founders didn't believe that broad delegation of legislative power violated the Constitution, but conservative originalists keep insisting otherwise. Now, as anyone who has worked in media knows, authors rarely write their headline. They often don't even get to weigh in on the headline or know the headline in advance. I have had that experience before, but nevertheless, we're going to use that as the summary from professors Julian Davis Mortensen and Nicholas Bagley, both at the University of Michigan. And today joining us is

professor Nicholas Bagley. I'm sure all your students are tuning in. They've got their Michigan gear on. They're screaming. They're cheering. Then what happened was we had several listeners email me and say, how dare you, Sarah, talk about Bagley's awesome piece without then talking about Professor Elon Wurman's response that is coming out in the Yale Law Journal this spring. And of course, I was offended that these people emailed and didn't already assume that, of course, I know Elon. We go way back. He clerked for Judge Smith right down the hall from Judge Jones. We didn't clerk at the same time, but nevertheless, we're sort of step clerks. When you're a Jones clerk to a Smith clerk, you're related. You live in the same house, but your parents aren't the same biologically. So Professor Worman teaches at Arizona State

University. I'm told he has back-to-back classes this semester so he's uh pretty loopy which i think will make for a fun debate um professor bagley nick nick uh i i talked about your piece last week i did not reach out to you first which was frankly kind of rude of me is there anything that i like do you want to summarize it and if there's anything i mischaracterized or that i didn't emphasize enough give us the like-minute version again of your piece that started this amazing conversation. You did great. I was just happy to hear our names pronounced on air. So the article that we published is really a piece digging into the early American history around the principle of delegation. So at the core of the modern

state is this notion that when Congress passes a law, it's got to enlist the executive branch to help carry it out. And when it passes a law, it often speaks in pretty broad strokes, you know, like EPA set national ambient air quality standards that are requisite to protect the public health, for example. But what does that mean? It gives a lot of discretion to policymakers. And so there's been a movement afoot among conservative jurists to say, hey, the Congress has got to make the big decisions. It's got to make the important decisions. It can't leave those to executive branch actors. That gives too much power to the president and to the agencies. And oh, by the way, that's what the founders thought way back at the beginning. And this is a constant tradition that's been with us right from the founding.

Delegations of broad authority were anathema. And so my co-author and I thought, okay, well, look, we're not originalists, but that claim, you can read the same historical materials that the originalists have read and evaluate it. And that's what we did. We went back into the materials and asked, does the historical evidence substantiate the claim that the founding generation believed that Congress could not delegate broad authority to executive branch actors? And the answer we found is a pretty conclusive no. The evidence for it just isn't there. In fact, early Congresses passed all sorts of statutes that delegated all sorts of powers to executive branch actors in all sorts of domains without any kind of hint of constitutional objection. The only thing you

said last week that I thought, eh, I'm not sure we said that in the paper, is you said we think delegations are good. The paper is really strictly historical. You know, I am not thrilled with the development of a non-delegation doctrine in 21st century case law. But if it's defended on the ground that it's, you know, a good idea given where we currently are as a matter of kind of the way the Constitution evolves and develops, it's a different set of arguments. I'm open to them. We can talk about it. I think it's a bad idea. But this really is a claim about what the founding generation thought about the meaning of the Constitution. Good clarification. I like that. Elon, your piece is creatively titled non-delegation at the Founding. Less clickbaity, I will say. You got to work on that. You really need to work on that title. Well, their piece was in The Atlantic, right? So what? Their law review article, I think, is titled Delegation at the Founding, right? Is that right,

Nick? That's correct. That's correct. We're not clickbaity on any outlets except the public, you know, the ones that people actually read. All right. Then when you publish yours in a non-law journal, we're going to expect high clickbait titling. Why don't you walk us through your piece and where you think your arguments best Nick's arguments. Yeah, so thanks so much for having me on this podcast, especially at the same time as Nick. This is very, very, very exciting. So the first thing I always say when I talk about Julian and Nick's paper is there's at least one great virtue of this paper, which I think is it shows that originalist work is possible. I think, you know, to make the kinds of claims they do, you know, that we unearth the historical

evidence, we canvass the historical evidence and to make a conclusion like there was no non-delegation at the founding. And, you know, I don't know if they still say this, but when I first responded to them, they said in the paper, you know, the question isn't close. You have to believe historical knowledge is possible. And, you know, it's useful to legal questions. So, so, uh, that reminds me a little of the Hamilton line, uh, from the musical where, uh, she says, Burr, you disgust me. And he says, ah, so you've disgust me. Yes. You know, I really have to see that again. I once flew across the country to see Hamilton because it was more cost-effective to do that. And so I I really have to see that again. I once flew across the country to see Hamilton because it was more cost effective to do that. I have to rewatch that now. But yeah, so I think it's great. I think it's great in that sense. But in terms of the actual conclusions, you know,

I do think they kind of get it backward. And so the claim of obviously my paper, non-delegation of the founding, is that there was a doctrine, a non-delegation doctrine of the founding, and there's almost no evidence to the contrary. Now, to be clear, though, it could be the case that there was a non-delegation doctrine at the founding, right? This idea that Congress can't give away its legislative power, but that it was a pretty weak doctrine, right? That there was just not much content to it, that Congress had a lot of flexibility to do it, and that it would only ever be policed on the margins, you know, the most egregious delegation. So it could be that there was a delegation doctrine at the founding, but that it was, it was weak, right? But the claim that there was no non-delegation at the founding, I think

there's actually almost no evidence for that. And, you know, I'll just say a few things because you didn't discuss my piece last week. I'll just say a couple arguments in favor, you know, Julian and Nick and their paper argue that James Madison sort of had an idiosyncratic view of the non-delegation doctrine. He definitely believed in the non-delegation doctrine. If you look at my paper, I canvass from, you know, the first, second Congress through like the 1820s and 30s even by my count representatives, Madison, Sharman, Livermore, I wrote these all down, Hartley, Page, White, Gary, Vining, Williams, Livingston, Nicholas, Gallatin, McDowell, Key, Rowan,

John Jackson, Alexander Smith, and John Quincy Adams, and of course, John Marshall as Chief Justice in William and B. Southard, all seem to agree that there is a non-delegation principle. And so it's just, you know, I don't get where this comes from, right? That, that Madison is idiosyncratic, even where, by the way, like a rep in these debates over delegating power, whether this non-delegation argument was raised, the proponents of the delegation, like Sedgwick, Representative Sedgwick in the famous post-roots debate. I don't know if you talked about that last week, right? The debate was, this was, this was probably the earliest serious non-delegation debate, right, Nick? I think you would agree in the second Congress, the initial statute specified where the post roads would be

in very, very nitty gritty detail through every single city. They named like 85 towns from New Hampshire down to Georgia where the post roads would go. Why is Congress in the business of doing this, of course? Well, because it was the port projects of the day. it was very, very important, right, for the representatives to get the post roads through the towns and through their constituents, it was the means of communication, it meant jobs, and things like that. And Representative Cedric offered this amendment to say, let's get rid of all of the specification of these roads and just say, you know, give the Postmaster General the power to decide where the routes shall be, right? Basically, that idea of being the postmaster general the power to decide where the routes shall be, right? Basically, that idea of being the postmaster general is going to be less partial to particular constituencies,

will be sort of more an expert, will know better what the efficient route is, and so on. But even here, and this amendment was rejected, by the way, in favor of continuing and maintaining the specification. But even Representative Cedric said, I'm not saying we can delegate our power, right? He just said he would rather leave the details of the business to the executive, and he thought it was sufficient that the House should establish the principle, right, leaving the executive to carry it into effect. This sounds kind of like the modern intelligible principle doctrine, right? So even those who favor delegating more power thought that there was a non-delegation doctrine, even if it was relatively weak. Briefly on the actual practices of the first Congress and the

second Congress, it's true that we find pretty broad delegations. We don't really find delegations, though, to regulate private rights. What do I mean by private rights? Private rights are, you know, the rights and obligations of private persons, right? Telling you what you can and can't do. What is private rights opposed to? Well, there's official conduct, you know, directing officers in how they interpret law, you know, think classic policy statements, interpretative rules, maybe under the Administrative Procedure Act. And then there's also something called public rights, right? What are public rights? Well, I mean, it's a bit contested, but the idea is you

don't have these rights in the state of nature. You only have public rights by grace of government, right? By virtue of government. So things like welfare benefits, public pensions for veterans, maybe land grants, public land grants, these things are quintessentially public rights. And we see lots of delegations in the public rights space, especially dealing with veterans pensions and things like that. But we don't see any delegation of private rights as far as I can tell. And I know Nick, I think, will quibble with that characterization until, I think, the 1852 Steamboat Act, by the way. And so, you know, so, so... That was exactly, I was about to say 1852 Steamboat Act, and it was going to be, I promise

it was going to be at the exact same time. By the way, Nick's facial expressions during this have been awesome, and I'm sorry you guys are missing them. I can bet that he is a very popular professor at the University of Michigan. Please continue. I'll say two more things. Actually, I say the 1852 Steamboat Act. I should say that Nicholas Perillo, a different Nick at Yale, has a piece coming out in the same volume of the Yale Law Journal as my piece on the direct tax of 1798. He claims that this authorized regulations of private rights. I'm actually not sure that that's right, but there is some dispute going on there. So what I think is between the Nick Bagley paper,

the Nick Perillo paper, the 1852 Steamboat Act, what it does tell us is that maybe originalists, formalists have to rethink their theory of non-delegation, right? It does strike me as somewhat crazy, by the way, to say Congress can't delegate any power to regulate private rights. You know, again, Steamboat Act of 1850, it gave the steamboat inspectors authority to impose passenger limits on steamboats, right? Well, that would affect private rights, right? Can we really expect Congress to pass a statute that says, you know, Airbus A319s, this many passengers, Airbus A321, but like, it seems crazy, right? So clearly, I think some amount of private rights and conduct can be regulated by the

executive. So maybe originals have to rethink their theory. And the theory that I propounded in my paper, I take from Chief Justice Marshall in a case called Wayman against Southard, where he just says, look, it sounds a bit circular, but I think Congress has to do the important stuff, right? There's exclusively legislative power to decide the important subjects, but the executive can fill in the details. Will private rights be more important than public rights? Of course. But maybe that doesn't mean Congress can't delegate any power.

Maybe it can delegate some power over private rights. And with that, I'll stop. Okay, listeners. Now, the Atlantic piece published in the Atlantic, all of you could read it. The Yale Law Journal piece coming out this spring. Weirdly, you can always get law journal pieces well months before they come out. It's kind of a weird quirk of law journals. All of that is available to the public, but you know what's not available? What's about to happen. For the first time, Nick is going to respond to Elon's piece, which to call it a throwdown would seem like a gross mischaracterization of what Elon's point was. Nick, go. No, I'm so happy to be able to engage. This is fun. So the first thing I'll say right out of the gate is the difference between saying that there was no non-delegation

doctrine and that there was a non-delegation doctrine, but nobody exactly knew when it would come into effect, is much smaller than Ilan may make it seem. I mean, for a doctrine to be a doctrine, you've got to actually have some level of coherent agreement beyond a matter of very gauzy principle about what sorts of things crossed the line. And there simply was no agreement at the time. And it's actually kind of embarrassing for originalists that they all disagree about what the non-delegation doctrine prohibits, right? So Elon says it's the big important stuff. Philip Hamburger says it's only about regulating private rights. Michael Rapoport claims that the materials have a two-tiered non-delegation doctrine that categorically prohibits any policymaking discretion in the executive branch. They wouldn't be fighting about the contours of the doctrine

if the founders agreed about what those contours were. So Ilan is right in the following sense, that there were certainly constitutional impulses in the air that you could pull on to build an argument that certain delegations went too far when you wanted to use those arguments to defeat a piece of legislation that you disliked on independent grounds. In other words, these founders were constitutional innovators from the moment the Constitution is adopted. And that's fine. That's the way constitutional law works. But it's not the way that originalism is supposed to work. Originalism is supposed to work by asking, what is the original public meaning of the document itself? How would it have been understood by the delegates at the state ratifying conventions?

And there, we have zero evidence, none, that they would have agreed that there was some line, even one that they could broadly understand, beyond which Congress couldn't go. Now, this sounds a little weird. Could they just delegate anything? Well, again, maybe they could have ginned up an argument about why some delegations went too far, right? You can always do that. And in fact, over the course of the 1790s, you see constitutional innovators start to do that. But at the founding itself, not so much. The bottom line in terms of what it was that the founders were worried about, when they approved the Constitution, they had just come off a period in the 1780s where state legislatures were running amok. And these elites worried a great deal about making sure that the legislature in Congress was sufficiently restrained that it wouldn't be upsetting property rights in quite the same way that the state legislatures had been. But the problem that was salient to them was legislatures that were too strong. It wasn't an executive branch that

legislatures just capitulated to. That wasn't a thought that they had. And so they didn't worry about it very much. And so there was no articulated doctrine. The last thing I'll say before handing it back to Elan, the post-roads debate is the first time you see objections to the non-delegation doctrine arising, but it's not the first time that you see big delegations over private rights. You saw a bunch of them in the first Congress. First, Congress delegated the authority to a governor and to territorial judges to come up with all the criminal and civil laws for the entire Northwest Territory. They ceded to a panel of three people, including Thomas Jefferson, the authority to devise the entire patent laws, which meant that you could preclude private individuals from producing the patented good, which is an infringement on private rights. They delegated the authority to cite the District of Columbia, which means you're depriving a bunch of people of their right to vote if they happen to be moving from Maryland into the district.

You've got a law forbidding trade with American Indian tribes without a license, subject to rules that the president gets to decide with no guidance at all. Again, an infringement of your private right to engage in commerce. Like, they just fall out of your pockets when you look at it. And there is no discussion, no hint of an objection the entire first Congress. The first time you hear it, it's about post roads. Now, no originalist today believes that it would be unconstitutional to delegate to the postmaster general the authority to tell the postal trucks where to go. Everybody agrees that are constitutional. We're not like it doesn't make any sense. Like the doctrine has to map a little bit onto the concerns that you are espousing today. And it just doesn't.

These are post hoc rationalizations forced onto the historical record, not an actual careful and candid evaluation of what was going on at the founding. I don't know. That was pretty good in this rap battle, Ilan. of what was going on at the founding. I don't know. That was pretty good in this rap battle, Elon. I mean, I will say this, that's the most passionate discussion of post-roads in 180 years.

So over to you, Elon. Fair. So I guess I have a couple of things to say. I don't know how far Nick and I actually disagree here. I think we disagree on the don't know how far, uh, Nick and I actually disagree here. I think we disagree on the implications of the evidence maybe, but just, I think we agree at what we're looking at maybe, but I think that what we take from it might be different. Right. So, so Nick started off by saying that there's a, there's very little difference or daylight

between saying there was no non-delegation doctrine on this week on delegation doctrine. And that may, and no one talked about it. And that may be true, but they didn't even come close to testing it. Now, Nick has a few examples where he thinks, well, these delegations should have tested the principle. And I'll get to that in a second, because I'm not sure that's right. When it comes to major delegations of private right, of the kind that we saw, by the way, and that were struck down in Chetra Poultry, for example, where even Justice Cardozo said, look, this is a roving commission to make codes of fair competition for the entire economy. Finally, we see a statute that's this insanely

huge delegation over the entire national economy, broad and competing standards that work at cross purposes, regulates private rights and conduct, and the Supreme Court did strike it down, right? I mean, so the occasion to test this theory would never have really come up in actual cases of legislation until well after 1887, when Congress started regulating the national economy more under the commerce power, right? And so that would explain that, on the examples, though, I just interpret the examples differently. The delegation of power to the territories, the delegation of power to the District of Columbia, in my view, was not a delegation of the legislative power of the United States from Congress to the president. It was Congress and right where the president can veto any attempts to reclaim that power, right? Instead of this horizontal delegation to a coordinate branch of government, it was a delegation from the national government to local governments to exercise local power, right? Do we really think Congress has to make tort law, property law for the new Louisiana territory?

No. The idea was right. The federal law would still apply. But when it came to local law, the kind of stuff that the states would do, you are you can delegate downward, you know, local legislative power. And I think that explains the territories. I explained that, you know, D.C. patents are difficult. Right. Patents. Those are pretty broad delegation. Even then, I would say Congress did decide some things. It said it has to be novel. And I think it said useful. Even the big question was whether maybe they didn't say useful. Nick will correct me on that. And of course, what, what is, what do those mean? Those are pretty broad. Even today, those terms are pretty broad, right? And one raises the question though, what more could Congress actually really say in advance?

And if Congress couldn't reasonably say much more in advance, it raises the question whether it's really delegated power. But even then, arguably, patents are a public right. At least the granting of a patent is a public right, right? And so that, I think, makes sense. Now, can you dislodge a patent from someone who's already received the patent? Has it now become a private right? The Supreme Court in a recent case called the oil states said it's still a public right. I'm not sure that's correct, you know, but, but even then, when it came to dislodging patents that had been granted through interference proceedings, Congress provided, you know, that a court would do it and it would, it had provided that it would be after the fact, you know, so that there would be

an interference proceeding after the fact and so on. So I don't know, Congress seemed to have resolved a lot of questions even there. And so I still think we're missing those evidence of these broad delegations of the kind that we see in the modern era, especially when it comes to private rights. By the way, on originalism,

I just have to say one thing about that, that it's embarrassing to originalists. Okay, fair enough. We originalists get this criticism a lot, but it reminds me of, you know, what I think I read it in Alan Bloom's, The Closing of American Mind, right? The diversity of opinions in a college bull session doesn't prove there isn't truth, right? Just because people disagree about things, just because people disagree about the historical record, the historians disagree about the historical record. That doesn't mean historical knowledge isn't true. And I do think we can arrive at a range of plausible meanings, right, within which maybe

we have to come up with some way to decide constitutional cases, right? But a range is still a range. A range has endpoints, you know? A range still excludes things from the range. And I think, you know, originalists do a disservice to themselves and others if they claim that originalism's virtue is that it leads to like one right answer. I don't think that's true, but I do think it leads to a circumscribed range of plausible answers. And how circumscribed depends on the person, right? So Nick, I have a question for you. And it's about originalism. So first of all, I think it's fascinating that you are not an originalist and you have written this very long paper. These take a long time where you're sort of putting on the hat of an originalist to kind of undermine the theory of originalism. I think it's, I'm so glad that folks are doing that from the sense that, I think it's really helpful. I think it broadens the debate on originalism as a whole, rather than just

originalists doing originalism in a little corner of their world. So here's my question. At the time of the founding, there is no administrative state. And I think when people now in the modern originalist world, you know, federalist society, originalism, let's call it, are complaining about non-deleg what the founders would have thought of the administrative state with any academic rigor, as best I can think of. What you think about that and whether you think that in and of itself undermines the case for originalism. Well, if we don't have the administrative state at the founding, then we can't really talk about what the founders would have thought of the administrative state. And therefore the exercise of originalism doesn't work. Or do you have another take on how we think about non-delegation with the modern administrative state? You know, there's a lot going on in your question. And let me try to tackle it. I feel like a 1L again. And my professor was just like,

bad question, Sarah. Bad question. No, no, no, no. It's a great question. The reason it's a good question is because it hits me to, you know, forces me to sort of try to work through a couple of points real fast. Like, why would it be the case that non-originalists care about this debate? Well, there are two big reasons.

The first is that it matters today because the Supreme Court appears poised to breathe life back into the non-delegation doctrine based on a theory that it was kind of has originalist bona fides. That can have real consequences on the ground for the administrative state going forward. So the debate is actually quite real. And if I'd prefer not to fight on originalist terms, well, like that's just the terms that have been given to me. I don't have a choice about that. But the second is actually deeper, which is I do care about the history. The question of what kind of fealty we owe to the founding generation, I think, is difficult. And I don't think the answer is, let's look at the founding moment as it is set in amber and never believe that our constitution shifts over time.

At the same time, it seems quite reasonable to me that we ought to care what the founding generation thought. And beyond that, I like history. I'd like to get the answer right. I think Ilan is 100% correct that there are bounds on what you can glean and infer from historical record. In terms of what we do about the fact that our country looks very different than it did back in 1789, and that it's very hard to see how the founders would have even thought about the administrative state. To be honest, that's part of the reason that I find originalism to be kind of an odd approach to constitutional interpretation. It just doesn't seem to give you the kinds of answers you need to deal with our modern state.

And so originalism is kind of tacked between this like, well, you know, our modern state. And so originalism, originalists kind of tack between this, like, well, you have to burn the whole thing down, because that isn't what the founders thought. And then they realize, well, you can't quite do that. And so then they end up nibbling on like some very strange margins, right? You issue an opinion here or there along some margin that doesn't actually make a huge practical difference, but can actually still be kind of destabilizing. So I don't know that I have a great theory that I can offer to you that explains exactly the role, the kind of weight we ought to give to historical evidence. But I will say, like, you know, like, Elon's arguments about what happened at the founding, like, I don't find them terribly persuasive, because they seem to have the structure of, look at the first Congress, look at all the stuff that

it did, ignore all that stuff. And there was definitely a non-delegation doctrine. But like, you can't. And if you go back and you look at, you know, all the justifications for writing off the various pieces of legislation that they adopted as evidence that there was, if you just discount that as evidence, because you think that delegations dealing with Indian tribes don't count, or dealing with the territories don't count, or dealing with patents don't count. Well, none of the founders actually said that. None of them said, oh, this delegation's okay, because it deals with public rights. There is nothing in the historical record suggesting they carved the world the way that Alain does.

And that makes sense. They were living in a very different time. It'd be kind of strange if they thought about the world in the same categories that we do today. What happens when 20 extremely athletic Canadians who thrive on competition and won't settle for less than number one find themselves on a team?

Taking on jaw-dropping obstacles all across Canada is one thing. Working together on a team with some pretty big personalities is another. It's a new season of Canada's Ultimate Challenge, and sparks are gonna fly. New episode Sundays. Watch free on CBC Gem. Ilan, administrative state at the founding, go. Yeah, so I was going to push back on that, actually, Sarah. I don't know that that's true.

I think there was an administrative state. What is an administrative state but executive branch departments and officers who assist the president in executing the law? I mean, the Constitution and the Opinions Clause contemplates principal officers. There's the Appointments Clause, which contemplates principal and inferior officers. The first Congress established the three great departments of government, you know, war, foreign affairs.

I guess that became the State Department eventually and Treasury. And so that's, you know, so the problem here isn't that the administrative state somehow is unconstitutional or didn't exist at the founding. The problem is for conservatives, for originalists, the scope of the commerce power, right? The scope of congressional power. But assuming we're not fighting that today on this podcast, you could have us back.

All right. Another time, right? If Congress is going to pass these laws, more and more laws affecting the national economy, the executive is going to have to execute the laws, right? That's what the executive does. And the executive is going to need departments and assistants and people to execute the particular laws that Congress enacts, right? What could what originals don't like is, you know, certain elements of it, for example, independent agencies, like where does that come? Right? I mean, it's one thing to say there's going to be assistance to have the

president execute the law. It's another thing to say entirely, we're giving the law execution power to these other officers and the president can't, you know, direct them in the exercise of discretion, right? Which may or may not be unconstitutional from an originalist perspective, right? So my view of the matter, by the way, and here, you know, I hope I'm not flung an effigy among my fellow originalists. I think much of the modern administrative state is constitutional. And the reason I say this is, you know, both on legislative executive and judicial power, right? You know, so again, Marshall said Congress can't delegate exclusively legislative power over the important subjects. But I don't think that means they can't delegate power over private rights ever. I think they just have to do it over a narrow area of conduct, right? It can't be a

roving commission over the whole national economy. And I think the standards have to be relatively more precise. And there you get steamboat inspectors imposing passenger limits on ships and making rules for passing ships. And I think that's fine. I think that's fine. And I actually think a lot of delegations today would actually be upheld under that kind of test that I put forward on executive power, right? Even if we don't like independent agencies, even if we get rid of for-cause removal protection, right, which is what creates these independent agencies, I don't think that means Congress can't create a commission that's bipartisan. The president would have to reappoint someone of a particular party, so there's this bipartisan balance. I think the appointment structure of these commissions is

still constitutional, right? And it's still going to be difficult for the president to influence enough of them, you know, to the point that they ignore the statutory mandate. And on judicial power, what originalists complain of is the executive branch adjudicating private rights, like liberty and property rights that historically had to be adjudicated in a court within an executive branch agency. And that really didn't happen until the 20th century, probably until two decades or so into the 20th century. And, you know, I've proposed a solution to end private rights cases to make administrative law judges true adjuncts of a district court. If it's a private rights case, just have them submit a report and recommendation that the objections to it is reviewed de novo by a district court judge.

This is exactly what bankruptcy courts do. That's exactly what bankruptcy judges do in so-called stern claims that are within the article through judicial power. So if you do these tweaks, right, I think much of the administrative state survives, but it could be made more constitutional. And I also think in desirable ways. David. All right. So, so here's my question. This is something that I've,

uh, so I, I, I have come to, you know, I, my experience of originalism is much more in the litigation context than in the scholarship context.

And when I, when I have been trying to make arguments, constitutional arguments, my originalism starts with the text. And here is one of my issues that I've long had with some kinds of originalist scholarship and inquiry. And it seems as if sometimes what we do is we take a text and then we sort of spelunk into that first Congress, the second Congress, third congress to see how congress how congress acted as if congress the earlier the congress the more impossible it is for them to have violated the constitution so a classic example of that would

be the alien and sedition acts um here you have a text congress shall make no law set what 1798 here comes alien and sedition acts you kind of have this crisis and but nobody would say no originalist i know worth their salt says the existence of the alien and sedition acts passed so early in the american republic means that the first amendment is so much narrower than we think that it is. And so that's one of my, you know, one of my issues with sort of diving into some of these early acts is it often seems to presume that the early Congresses were acting in conformance with their, with the, that they were not themselves violating the constitution. So let me, let's interact with the text. So we have a hugely controversial theory on, on article two, the unitary executive centered around the, the,

the statement, the executive power shall be vested in a president of the United States of America. But there's also the beginning of article one, Section 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives. And I guess for both of you guys, what I want to know from an originalist perspective is how both of you guys interact. I know, Nick, you're not an originalist, but what is your position on how you should interact first with that text with the understanding outside of the presumption that the early Congresses are proof positive of what it meant? As opposed to can't early Congresses have also violated the Constitution? Can't they have departed from the meaning because of expediency and other reasons?

I hope that makes sense. But I've always kind of objected to this notion that, well, here's how we prove what it meant as if the early Congress couldn't have departed from its meaning. Yeah. I'm really glad you asked that, David. This is an important point. The non-delegation debate would be pretty easy if the Constitution itself spoke to the question. But all we've got are those rather Delphic statements that all legislative power and executive power shall be here and granted. have for some time attempted to argue that the executive power and the legislative power, they meant something, that certain kinds of exercises of power by the executive branch were legislative in nature, and therefore everyone would have agreed that they couldn't be delegated to the executive branch. My own view is those arguments are not terribly compelling. Like a well-informed observer in the 18th century who votes in favor of a constitution that doesn't speak to the non-delegation doctrine probably has no especially well-considered views on the

question one way or the other. And in fact, that seems to be what the evidence strongly suggests. Then you get the core of the originalist claim, which is the historical evidence. Because the text runs out, you've got to import history to say, listen, these terms that seem like they're Delphic to us, they had a well understood meaning among the legal community. Like everybody understood what they meant. And then it's the burden of the originalists to say, oh, yeah, everybody understood that this meant X. And that I mean, you couldn't delegate Y. And, and that's where the evidence here runs out. So I agree with you. I think that right out of the gate, the non delegation doctrine looks like a penumbra of the Constitution, the kind of penumbra that we read.

That's a trigger word for me, Nick. That's a trigger word. I know, but the move is exactly the same, that they make a broad claim about the separation of powers, about the way that the Constitution ought to work, and they read into that the non-delegation doctrine. It's just the same move you see in reading the right to privacy into the Constitution. So I don't think that works for the right to privacy, and I don't think it works for the non-delegation doctrine. The historical record is the linchpin of their case because the text runs out, and that's why I think this debate is so important to join. So I assume I could jump in, David, to answer this question.

Oh yeah, please. There's a lot to say on it. And I know that the vesting clauses are that Delphic in this regard. I mean, the question is, what would a reader have understood the framers to be doing? What would they have thought them to be accomplishing when they said the legislative power is granted in a Congress constituted by representatives from the entire nation with staggered terms. You know, the House has two year terms. The Senate has six year terms with a different constituency. The president has a four year term with an even different constituency from all of them. What would they have understood when a grant of executive power was given

to a single president who would need the secrecy and dispatch and energy, right, to execute the laws and engage in foreign relations and things like that? And what would they have thought they were accomplishing when they granted the judicial power? What is the judicial power, by the way? I think the core exclusive judicial power is the power to adjudicate cases under existing law affecting life, liberty, and property, right? When they gave that to lifetime tenured and salary protected judges who would be insulated from political influence, what would they have thought they were doing? Well, it sounds quite plausible to think that they thought legislative power should be done, legislation, laws should be created by a representative body, law should be executed by a single person who could be held responsible for

the execution of the laws and could execute them vigorously. And that deprivations of life, liberty, and property should only be done by courts who are insulated from political pressure, right? And so I think the implication- Wait, what about bankruptcy courts? What about Article I courts? Bankruptcy judges absolutely can deprive someone of life, liberty, and property, and they are not lifetime tenured, can deprive someone of life, liberty, and property, and they are not lifetime tenured. And one of them's related to me. Spoiler there. Yes, yes, yes, they can. And that doesn't make them constitutional to go back to David's initial question about, can Congress sometimes make mistakes? And here's the reality. Lots of executive branch adjudications happen. Again, patent rights, land grants, things like that.

A public rights case, which was not in the core of judicial power. Why, by the way? Because Congress doesn't have to create these rights. And if Congress doesn't have to create these rights, it also doesn't have to be. There's something called sovereign immunity where you can't sue them if they wrongfully withhold a land grant or something like that. And so if they don't have to be sued, they can agree to an executive branch adjudication and no judicial review at all in public rights cases. And historically, at the very beginning, Congress actually resolved public rights claims and

petitions, you know, in committee. And so that's different from the private rights cases. So I think the obligation is that, you know, that these are the institutions for institutional purposes that have to exercise these powers, and therefore they can't just rejigger it themselves, right? If Congress can give the legislative power to the executive, then why can't they create a new body entirely? You know, a JV Congress, you know, like the Sentencing Commission in Estrella and do it that way, right? So I don't think it's penumbral. I don't think it's Delphic. I actually just think it's the implication. It's what they all would have understood from the text. To the extent it's difficult, I think it's difficult because of what Nick and Julian raise

in their paper, which is, look, once Congress has delegated power, isn't executing that broad statute executive power? And that's the difficulty, right? Because some things can look both legislative and executive, and that's maybe why we have to go to historical practice, where they could have gotten it wrong. So you look at historical practice over time from different actors, right. And that's maybe why we have to go to historical practice where they could have gotten it wrong. So, so you look at historical practice over time from different actors, right? And that's this theory of liquidation, you know, that might go to your question. And, and, and that, I think what, what Nick Julian and I disagree with the most, by the way, you should have Nick's coauthor, Julian as an executive power paper where he and I actually agree. Like we agree. It's just the power to execute law. This whole residual vesting nonsense that I was convinced that that,

that that was correct. Uh, until I read Julian's paper and I started writing a response to Julian's paper where he said, it's just law execution. That's all it is. And I'm like, he's wrong.

He's misreading Blackstone. And the more I got into it, it was like, Oh my God, he's right. And I've been, you know, everything I thought about executive power for years was wrong. I had to tell my students the next year in administrative law

that if you had me for con law, everything I told you was wrong, you know, last year. And so, so it is, this is what these debates are about though. It is possible to have a debate about this historical record and to change minds. And I think that's important. And I think that's a real virtue of, of Nick and Julian's work. You know, even if it doesn't convince us, you know, that there isn't a non-delegation doctrine, I think it has convinced some originalists that it's much weaker than whatever non-delegation doctrine we previously thought. And, you know, that's something to be said for Nick and Julian's work among originalists. Guys, this has been an incredible conversation.

I have learned a ton and really enjoyed it. And David, I think when we talk about originalism and textualism moving forward, we have an opinion hand down day on Wednesday from the court. I think our listeners have benefited from this, and we will now be able to really dive in more on originalism versus textualism as the justices, I think, do that as well. Now, you'll notice when I introduced Nick and Ilan, I didn't really go through Nick's resume. And there's a reason because Nick and I are of the same generation from law school. And there was a thing called Underneath Their Robes when we were in law school. And it was an anonymous blog, including the Article 3 groupies is what it was

called. And so it was like this gossip blog about justices, about, you know, Rachel Brand was named prom queen of the Federalist Society dinner one year. And so that blog was outed as David Latt, one year. And so that blog was outed as David Latt, who's just a fabulous human who I adore. And I still have a pair of his socks that he loaned me one time. And I'm really sorry about that, David. But it turns into a website called Above the Law. And Above the Law, in its early used to rate weddings. Is that right? Are you serious about that? Oh, yes. Oh, yeah. And so in 2007,

Nick and his wife, Christina, are rated and their resume score is the highest resume score of all time on above the law. At the time, they got a 9.4 because they were both NYU law grads. She Magna, he Suma. Christina is a Brown and LSE graduate, a former law clerk to the exceedingly prestigious judge, William F, uh, sorry, Stephen F Williams of the DC circuit and a lawyer at the

state department. Tough to top, right? But Nick has managed to do so. He's a member of the elect currently clerking for Justice John Paul Stevens. Now, unfortunately, Nick, you and Christina lost points on your beauty score because of the photo you filed with the New York Times. The photo was too cutesy. You know that. And I'm wondering if you have regrets about the photo. cutesy. You know that, and I'm wondering if you have regrets about the photo. You know, there are many things in my life I regret. I have not spent a lot of time worrying about that one. Now, Sarah, that is a good, what is it your generation calls it, a good pull? That's a good pull. That is a good pull. But I also want to say this because Sarah and I have had this long running dispute over whether or not people who are law school curious should go to law school. I'm a big law school advocate. And I think this discussion is helping me win the argument because, look, this is the kind of thing, I mean, I'm not saying like you go to law school and this stuff sort of breaks out spontaneously, but these kinds of discussions that matter historically, that matter

for current public policy, that matter for constitutional interpretation, this is what you kind of get to be a part of and get to marinate in for three years. And whether or not you're going to go become a corporate lawyer or a government lawyer, or you're going to do it for a while and go and do something else, I think it's a great education to have. That's my two cents, especially if you can afford it. If you can afford it, it's a great education to have. I'm all for it.

But that's another debate, Sarah. Nick, what do you tell prospective law students about how they should make the decision on whether to go to law school? I say take some time. You shouldn't go on straight through from undergrad if you can take a little time off to learn a little bit more about yourself. I think law students can get a little lost sometimes and make choices that are suboptimal to kind of go along with the herd. I'd also just make sure to come up with a pretty strong idea of what you hope to accomplish on the way out. These law firms these days can chew you up and can work for people, and some people love it, and some people can make a career there. But that's not true for the vast majority of people. So if you are signing up for law school so you can take a job that you think

is unlikely to satisfy you, you're probably doing it wrong. You want to think harder about where you want to end up and do what you can when you're at law school to position yourself with that. I think Nick's my spirit animal. Elon? I think I'm David's spirit animal because I have a whole spiel that I give on why students should go to law school if they're interested. Now, of course, look, everything Nick says is correct, by the way. You know, kind of have an idea of what you're going to do, discover yourself, take some time off. And a lot of people go to law school to do something over time that they don't actually need a law degree for. And I would question whether you should do that. I don't think having a law degree will hurt you in those circumstances, but it's a huge opportunity cost, and it's not clear how much it really helps. Right. But for those otherwise, you know, put that aside. Law is

amazing. Law school is fun. Being a lawyer is fun. It matters. It's important. It's interesting. And look, you'll graduate from law school and everyone will be like, thank goodness we have a lawyer in the family and your friends will, you know, everyone will come to you with your legal problems. And for about six years, okay, maybe not six years, you'll say, I'm not that kind of lawyer. That is the most common answer you're going to get. I'm not that kind of lawyer. I'm not the kind of lawyer. I'm not the kind of lawyer. Right. And then you'll wake up one day, you'll get a question and you'll say, holy crap, I am that kind of lawyer. I actually do know the answer to this question and I can help you, you know, and to me, you know, I mean, one of the earliest instances,

you know, was a few years ago when a friend of mine got rung up on criminal misdemeanor charges in city of Phoenix municipal court because someone claimed her dog bit the neighbor. Right. And it's like, wait a minute, you're showing up on Monday, criminal misdemeanor. Do you have a lawyer? No public defender. Not that I know of. I'd like shut the front door. I'm coming with you on Monday. Don't like do anything without me that I know of. I'm like, shut the front door. I'm coming with you on Monday. Don't do anything without me. And it's like, it matters. It matters and it's fun. So here I was, by the way, parachuting into the city of Phoenix Municipal Court and I filed two state constitutional claims to get the case dismissed. You bet they did. They were willing

to settle. So it was a lot of fun. I love it. And I would add in that moment, when you can say, I am that lawyer, then whatever the cost is, $180,000 is suddenly worth it. No, no, Nick, you and I, okay, no. I think anyone listening knows Nick and I won this. We don't need to even have the last word. That's how obvious it is. Guys, I can't begin to thank you enough for your time, for your brilliance. And we look forward to reading everything else you ever write. And our listeners will no doubt send it to us as well. So guys, wildly.

I mean, Channing Tatum stopped dancing because he was listening so rapidly with attention to the non-delegation throwdown. Thank you. Yes, thank you. And thank you all for listening. And we'll be back on Thursday with court decisions. Right, Sarah? You bet. All righty. Thank you guys for listening. And once again, please go rate us at Apple Podcasts. Please subscribe onto our podcast feed and check out thedispatch.com. And we will see you on Thursday.

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