Strict Scrutiny - Party Like It's 1935

Episode Date: February 14, 2022

Kate, Melissa, and Leah interview Professors Julian Davis Mortenson and Nick Bagley about the nondelegation doctrine.  Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts. I'm Kate Shaw. I'm Leah Littman. And I'm Melissa Murray. The Supreme Court is on a short winter break from hearing oral arguments, so we're able to do some

deep dives on issues that we might allude to on the show or issues that might come up before the court that would be difficult to cover in the span of a 15-minute case preview or recap. One of those issues is the non-delegation doctrine and the related major questions doctrine. These issues came up in the recent challenges to the Occupational Safety and Health Administration's workplace policies regarding COVID-19, as well as the challenge to the Center for Medicare and Medicaid Services' vaccination requirement for federal workers. And they're likely to rear their heads again in the upcoming climate cases that the Supreme Court will be hearing during the February sitting. So to talk more about these important issues, we are delighted to be joined today by two of my colleagues, Julian Davis Mortensen and Nick Bagley. Welcome to the show, Julian and Nick. Happy to be here. Great to be here. Thank you so much for having us on.

Julian is the James G. Philip Professor of Law at the University of Michigan, where he teaches and writes on constitutional law and international law, particularly presidential power. He is the co-author of a new constitutional law casebook for Foundation Press and also maintains an active litigation practice, including challenges to President Trump's travel ban. So that is really a proper strict scrutiny welcome. Delivered in a vaguely Gorsuch burn book style. Very sincerely. I will extend the same to Nick. So Nick is a professor at University of Michigan where he teaches and writes on administrative law and health law. He served as a special counsel to Michigan Governor Whitmer, aka the Queen of Shark Week on matters pertaining to

Michigan's COVID-19 response in spring and summer 2020. And to further pile on, both Julian and Nick are past recipients of the L. Hartwright Teaching Award. But to move on to what's really important, are past recipients of the L. Hartwright Teaching Award. But to move on to what's really important, they also are both dog owners. But despite these things, they are not the same person. In particular, here's one important distinction. Only Julian's dog is related to Stevie Nick's, Leah's dog. Their dogs are half sisters.

Nick, why didn't you get a dog in the same family? You know, it was obviously a mistake. I will say that Julian and I are pretty regularly mistaken for one another, which I find really strange. A hundred percent. No joke. I've had long conversations with colleagues about lunches that I didn't know what they were talking about. And so I caught on and realized that actually I just have to nod and smile and say, looking forward to it also. So maybe this is the appropriate point then for the content warnings we wanted to give to our listeners. This may be the first show of ours on which you hear the voices of two different straight cis white men. We know that this might be something you're unaccustomed to, particularly when it comes to hearing Supreme Court commentary, but we wanted to provide you something new, exciting, and different.

And we also did want to flag that. I'm happy to be a source of diversity for the program. We're confident you're going to do your people proud, you guys. So this is a show about the non-delegation doctrine, as Leah mentioned, and some other related issues. And we are delighted to have Nick and Julian on in no small part because they wrote a terrific article about this topic that everyone should read. It's now available in the Columbia Law Review.

It is long. It is a long article, but it is actually a great and snappy read. And the title of the article is Delegation at the Founding. So let's start with some groundwork. What is the non-delegation doctrine? And trick question. When was the non-delegation doctrine a thing? I'll start the second part. The non-delegation doctrine has never really been a thing. It had

like one good year back in 1935. Stop, shut the front door. So true. The non-delegation doctrine is the idea that Congress can't delegate too much power or power of the wrong kind to federal agencies. And the idea there is that it's really up to Congress to make the hard decisions in our democracy. And you can't just fob those decisions off onto unelected bureaucrats. And the perennial challenge has been distinguishing proper delegations when it's okay to ask agencies for their help, and from the improper delegations. And historically, the courts just really haven't tried. They've said, you know, delegations, it's up to Congress. They can delegate as much or as little as they want. If they don't like

how much they've delegated, they can always take it back. But of course, the current Supreme Court has a very different attitude toward the doctrine. So in your article, you survey founding era evidence for some historical basis for this non-delegation doctrine. And you argue that the founding generation didn't share anything approaching a belief that the constitutional settlement imposed restrictions on the kind of delegations of legislative power that Congress could make, let alone empowering the judiciary to police its limits. And you point to a bunch of examples from the early Congresses of laws that broadly empowered executive and judicial actors to adopt binding rules, including rules applicable to private parties. So I guess, why did you take this historical approach to assessing the non-delegation doctrine?

I think the main reason is that the methodology to which non-delegation doctrine? I think the main reason is that the methodology to which non-delegation advocates of the main are committed, and that includes especially in the judiciary, is originalism, which focuses on, as you all know, varying formulations, but the original understanding, the original public meaning of the Constitution in general, and particular clauses and phrases in the Constitution. So the project then is to say there's this claim about how the Constitution should work. It's never been successful. It appears to be on the rise. There appear possibly even to be five votes for it on the Supreme Court.

Why don't we interrogate decades of, it is literally decades now, of originalist scholarship claiming a non-delegation doctrine existed at the founding. And you know what I bet we'll find? I bet we'll find it was a lot more complicated than the scholarship suggests that it is. I bet we're going to find contestation. I bet we're going to find a story that's much more complicated than the neat little, you know, this box goes in this space sort of claims that the pretty flat body of scholarship supporting the claims have offered so far. to provide your bona fides, but it does seem like the article has particular problems with originalism as a methodology. And one of these problems seems to be that originalism takes its priors as being deeply historical, right? We are looking at what happened at the founding, at the ratification of the Constitution, and there should be historical evidence of what

originalism claims. But as you state in the article, the founding era is replete with historical evidence, and yet you found relatively little actual evidence of this non-delegation doctrine at the founding and at the time of the ratification of the Constitution. And instead, what you did find was actually evidence that delegations were quite common. Why haven't the originalists said that? Sometimes I think that it's easy for anybody who's part of an insular group to persuade themselves as something that everybody else around the table is already nodding about. And if you are a conservative originalist, you're already committed right out of the gate to the notion that the federal government has gotten out of hand.

Now, that probably has more to do with the way we've interpreted the Commerce Clause over the past couple of centuries than it does with how we've interpreted the non-delegation doctrine. But nonetheless, the non-delegation doctrine is really kind of the centerpiece of the movement conservatives' vision for what it means to, for how to pull back on the awesome power of the federal government. And if you start with a prior that strong and you turn to the historical evidence, it is possible by focusing on discrete episodes to pull quotes from folk like James Madison and Albert Gallatin saying things that kind of rhyme

with the modern non-delegation doctrine. And if you don't do any further work, because nobody's actually going to challenge you on it, because you're presenting your work to a bunch of originalists who are already committed to the same set of views that are going to be echoed by the courts, even if they're wrong, because courts are just looking to, you know, launder a set of political commitments through historical methodology, like, you end up with what I think is a pretty skewed debate. I think any fair reading of what is a voluminous amount of historical evidence from the founding would suggest, at a minimum, there was no agreement on a non-delegation doctrine. And to the extent that we have evidence about what the founders

thought about the non-delegation doctrine, the evidence cuts pretty hard in the direction that they thought there wasn't any such thing. They certainly had no shared commitment that anybody can point to at any reasonable level of generality that you could cash out in modern terms as a doctrine. Can I actually ask you to talk a little bit more, Nick, about, you know, a very small part of the article is this kind of brief intellectual history of the rise of this modern non-delegation doctrine, which, you know, you're talking about originalists, thinly sourced pieces, mostly presented to other originalists. But can you just, it is really a striking story of just the speed with which an invitation

at the turn of the century from Justice Thomas turns into a couple of thinly sourced law review articles. And 20 years later, we are basically within maybe spitting distance of an overhaul of the modern administrative state on this, as you say, not even a thin read, like barely a read at all. So so what is that brief intellectual history? Like how what even was what interceded between Thomas saying, like, maybe we should reconsider this and where we are now? Justice Thomas's invitation in 2001 to rethink the non-delegation doctrine was a solitary invitation, one of these kind of odd concurrences that he sometimes pens and then, you know, ends up spurring a lot of people to kind of rush into the breach to meet the demand for a theory to advance what I think are a fairly deeply felt set of policy priors. So what you see is right after that issues, and I should say,

Justice Thomas's invitation is also coinciding with the rise of originalism as an academic discipline, right? So it's becoming more of a feature of law school scholarship and becoming more know, either assert or do a fairly, you know, broad brush gloss on the non-delegation doctrine and assert its existence. Over time, there are enough of these that if you want to pull a string site and include it in a judicial opinion to give it the imprimatur of historical integrity, you're able to do that. The trouble is that, you know, none of these articles, none of these books stand up to do that. The trouble is that, you know, none of these articles, none of these books stand up to careful scrutiny. And really, there have been liberals that have kind of said, you know, this doesn't look great. You know, like Jerry Mishaw wrote a big article

about the early founding and said, hey, you know, there's an awful lot of delegations, these claims don't seem terribly persuasive, but nobody had yet engaged in a full, thoroughgoing debunking of the theory. We thought there was an opportunity there for us to come in and say, hey, the historical record here, it doesn't say what you think it says. We do want to spend some time on specifics of the debunking that you guys offer because we think they're really important and we do have kind of the luxury of time. But just maybe one more beat before we get there is on the method that you all used. I mean, we're asking about originalism generally, and I'm curious to hear how you define your relationship to originalism as a method, because this is a piece of originalist scholarship. But actually, more specifically, I'm curious about, you know, particularly the first and second Congress, like, did you actually read the full congressional record for the first couple of years? Or did you do targeted searches

of full text databases? Or this is kind of in the weeds, but I am actually really curious how – I think this was probably a very long undertaking. I'm not sure how long you were working on the project, but I'm curious what your study actually consisted of. I mean, it's interesting because this, not accidentally, jumps directly out of the conversation we were just having about what it looked like for a journalist to present claims like these at the conferences and to the audiences that were all too ready to hear them. I sometimes worry about being unkind in the way I say this, but the truth is it's only the most recent generation of originalist scholarship that begins to approach something like historical integrity. And it is frankly shocking, and the more I see it being relied on, the madder I get about it and the less inclined I tend to be to sort of want to be kind to these earlier generations of originalists who engaged in, you know, the phrase is law office history, but tendentious, motivated, tiny dip into occasional known events to snippet out words in the way that a litigator does.

With which I think literally everybody in this Zoom call is familiar how you work the the documents to push to your side of the case. And that's not what scholarship is. And like, it really pisses me off. And so what do we do? What we didn't do was say, hey, there's a postal roads thing. Let's go look for the word delegation and quote Madison saying this is a delegation problem in the second Congress. What we did was, and it sort of actually emerges from sort of parallel interests. I had separately been working for a whole long time on an exploration of how presidential and executive power were understood in the founding, with a special focus on the executive power in the Constitution, which of course becomes a phrase into which all sorts of hopes and dreams

of presidential unilateral support. And that methodology involved lots and lots of reading in core political theory texts and legal treatises, in less core political theory texts and treatises, and then systematically across an even broader group of stuff, literally word searching, going back to the days of like going through, you know, all feds, when I'm trying to figure out the right cases for some question, not the right cases, but figure out everything that's been in some question, looking for the word EXCC asterisk in a whole series of databases that, you know, collectively total millions of words. And in reading all of them, classifying them, thinking about how they relate, and not just the sentences in them, but reading the document they appear in. If the document refers to something else, you read the other document and you build a picture what's happening, rather than looking for the snippet, looking for friends in a crowd. I'm not going to go on and on.

But, right, like, it's like a multi-modal approach, where, like, you're both grabbing the set of known, core, celebrated primary texts, moving out to those to read the texts that they cite, and then in addition to that, doing the all feds approach, except in, right, like, well, most relevantly and most recently in the documentary history of the ratification of the Constitution. And Nick is sort of getting his dander up about non-delegation stuff. I mean, literally just down the hallway. And, you know, we have conversations about lots of things, but including, as one does, about the non-delegation doctrine and i started saying like i just don't like there's a lot of delegations nick and i've never seen anybody anywhere object to any of them and speaking now and this is really important

point because the i mean the second half of the piece i think is plausibly the most important for convincing the audience that as a matter of the judiciary, we have to convince. But like, I don't think that there's evidence for a non-delegation document. I don't see it raised in instances where they're like crazy delegations from the king to the colonies, from the colonies to the municipalities, from the states to the Congress, from parliament to the municipal. It's like, it's like every direction you look, it's how governance worked. It's like, you know, one day when I finish this other thing that's really important, you know, it would be fun to write something together

because I've written with Nick's wife, and so why not write with the whole family? And tackle that on delegation doctrine, just sort of like, you know, take this thing out behind the shed and put it down because not thinking at that time that it was something that was urgent just like there's something to be said on i'm just being ticked off about these tendentious interventions and then gundy comes out and nick is like so we need to we need to to ramp this up and so the the pre-founding stuff um it builds on 10 years of reading lots and lots of things in this space, not focused on non-delegation specifically, but subsequently sort of supplemented by looking at the usual non-delegation sources.

And the takeaway is, it's laughable to suggest that there was some legalized principle, that there was a limit on how much could be delegated. It's laughable. And then the question is what happens later. So Nick. In terms of searching through the annals of Congress, one thing that I think is difficult to convey in the article is just the sheer amount of founding era materials. There are 10,000 pages of the annals of Congress from the first 10 years of Congress, which are reporting in excruciating detail the debates that are happening on the floor. And obviously, there are other debates that we can't observe. But the ones that we can are really voluminous. And all of the most urgent constitutional questions of the day

were brooded at punitive length, including lots of constitutional battles you have never heard about because they're so fucking weird. Because people in the first and second and all through those early Congresses were fighting bitterly over the meaning of the Constitution. And they made stuff up about the document all the time. They would have policy objections that would shade into constitutional objections. And they'd be kind of strange or kooky to our eyes. And they'd be opposed by the folks who were advancing the legislation. Anyway, you read a lot of it.

You don't read every single 10,000 pages, right? That's not a great way to try to pull through that document. But what you do is you read the major debates on the major issues. You make sure you're doing the full text search of delegation, alienation, transfer, any word you can think of that and make sure that you're not missing anything. And then you read the debates where the kind of the stuff that kind of rhymes with delegation were happening and you read them all. And once you do that, I mean, I came very quickly to the same conclusion that Julian had come to from looking at the pre-ratification materials, which is there's really just nothing there. It's quite remarkable to have spun a theory out of so little. Can I come back to that and back to originalism and Justice Thomas, who is not only the court's most stalwart originalist, he is someone I think who extends that originalist bent to lots of

different areas. And the place that I am most interested in is his thinking about abortion. And I've talked about this before. He has recently spun out a historical narrative about abortion that locates abortion's founding moment, not in 1973 with Roe, but actually in the 1920s with the eugenics movement. But what's actually interesting about what you're saying is that Justice Thomas argues that abortion is unmoored from constitutional text, that there is nothing in the Constitution for abortion. And instead, it is something that has been implied by judges that doesn't exist. But you could say the very same thing about non-delegation. This is actually not wedded to constitutional text, but rather is a doctrine of implication. I agree with that so strongly. And Nick is pointing at me because he knows I'm just ready to agree. I find your point thoroughly persuasive, and I share it.

And I think that the analogies between substantive due process and the objections to substantive due process generally, which at some methodological level have significant force and are worth wrestling with if you want something other than an uncaven judiciary. A lesson which, when we were all in law school, we learned from Justice Thomas and Justice Scalia and earlier generations of justices castigating more liberal justices for freelancing from high-level values and instantiating them in particular limitations of the democratic process. And that's exactly what this is. And if you will permit me, Nick is going to roll his eyes, but you pull the language from any substantive due process opinion of a sufficiently high import. I mean, some of the stuff in Griswold and Roe are so on point to this. But the plug and play with

how the claims about non-delegation run today is just, it leaps off the face. Give me 20 seconds to read to you from Justice Scalia at Obergefell. The practice of constitutional revision by an unelected committee of nine, always accompanied by extravagant praise of liberty, robs the people of the most important liberty they asserted in the Declaration of Independence and the Revolution of 1686, the freedom to govern themselves. So far, so abstract. It gets more specific. Here is Justice Black in Griswold. The court talks about a constitutional right of privacy, substitute non-delegation doctrine, as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the privacy of individuals. But there is not. There are, of course, guarantees

in certain specific constitutional provisions, which designed in part to protect privacy at certain times and in places with respect to certain activities. Such, for example, is the Fourth Amendment's guarantee against unreasonable search and seizures. And this kind of thing is all over the substantive due process case law, as you guys know probably better than me. I like how you did that. I think we should have a new segment where we read all of the complaints around substantive due process, but just substitute other originalist bugaboos for substantive due process. And we should have Regé-Jean Page read all of them.

Oh, this would be a good segment. Oh, man. I would tune in just for that, for sure. The methodological thing that emerges from that in the substantive due process context, and this is the thing that has blown my mind the most and it's like it's sort of between like why can't you hear me and just how disingenuous are you and depending on how you feel about the audience depends on how that person and those people have conducted themselves in conversations in the past but like the way that the conservative project and that the originalist project

specifically deals with the phenomenon that you're describing, Melissa, is to impose what I always think of as the Glucksberg approach to subsidiary process. Not only Glucksberg, but it's sort of like most crisply enunciated in Glucksberg, and Glucksberg becomes the site. You don't deduce rights from abstract concepts, and I'm quoting now, of personal autonomy. You don't cite to some concept of liberty. Let's say the separation of powers, and reason from that is in particular application about something that seems important to you. Rather, what you need to show, and I'll quote again and then I'll cut it out. But the restriction that the counter-majoritarian advocates are arguing for now happened not just once, not just twice, but regularly. So that you're grounding the restriction in some demonstrable pattern of counter-majoritarian principle that emerged in particular concrete instances at the founding.

And it is so obvious to me that this principle, if it applies and if it makes sense as a thing to do, it has to apply this here. And I just don't, it doesn't register with the non-delegation crowd. I don't understand it. Julian, I am really happy that we could use this podcast to give you a voice for all of the outtakes from the numbers for me, but not for the section of the paper that Nick obviously made you cut. So happy to provide. Oh, you have no idea. There was, what, 15 pages on that, Nick? He cut that down.

I think it's a paragraph now. It's a really good paragraph. So maybe we can now turn to the second half of the article, which is about all of the examples from the first Congress of the delegations that Congress made to the executive branch and other actors to exercise various kinds of authority. You offer a ton of evidence of, again, just how routine and broad the delegations were at the

founding, which seems quite devastating to the claim that today's broad delegations are inconsistent with constitutional design. I wanted to bring up, you know, a challenge that some critics have raised. I want to make clear after I explain it that I don't agree with this. But you know, maybe we can just talk about it. So some critics have responded that while some of these delegations, or maybe all of these delegations are examples that can be explained or rationalized away on other grounds. So for example, delegations involving federal property or Native American affairs concern areas in which Congress is supposed to have plenary power rather than the enumerated or limited powers delegated elsewhere. Or Congress is granting benefits like patents or

spending money or conducting enforcement activity, but not imposing regulatory obligations on private parties. I again want to be clear that I don't find this objection persuasive, but I would love to hear your responses to it. Yeah. So when you look at the originalist approach to the evidence that actually exists about the routine delegations in the early Congresses, you find them weaving and bobbing and coming up with rationales for dismissing any particular example as off topic, just for the reasons you give, Leah. Whether it's going to be because it's about foreign affairs, or it's really about war, it's not regulating private conduct. All of that would be fine if there were historical evidence that those were the categories that mattered at the founding to the founder. So you could imagine

in an early Congress having a debate over a patent statute. And somebody says, gosh, doesn't it look kind of weird that we're giving to three cabinet secretaries, effectively carte blanche to fashion a patent system with no congressional guidance whatsoever. And that's kind of a big deal because not only do they get the grant patents to the individuals, which is, of course, a benefit, but then that benefit implies that everybody else in the country can't make that thing without permission from the patent holder. So it's a regulation of everybody's private rights. It seems like kind of a big deal. And we have this non-delegation doctrine. And let's talk about whether it applies here. None of that happened ever,

like not even close. There was never a law regulating Native American tribal affairs where we said, oh oh gosh, this delegation, yes, it would normally violate the non-delegation doctrine, but this has to do with Native Americans. So like, we're fine, peace out, right? Nobody ever said that. And so what I want to be clear here is, is all of the early delegations can be dismissed for one reason or another, but that's true for any law. You can always find some reason, think it doesn't matter. That's a trivial exercise. What's hard is finding evidence to support the view that people back in the day actually thought that. And there is none. The

originalists, and I'm going to make a strong claim here. This is going to make me sound like Julian with his hair on fire, but the originalists are just making it up. It did not exist, right? There is nobody who's like, well, gosh, this is kind of a small thing, and that's a big thing, and you know how we draw the line between small things and big things. Never. So from my perspective, at least, all of these claims about why these delegations didn't matter are really beside the point. You have to have some historical evidence to show that this is the way that the founders carved the world, and it just doesn't exist. After your article came out, I think some academics issued challenges to originalists basically saying, like, you need to grapple

with Nick and Julian's, you know, exhaustive historical evidence and survey. And, you know, some of the people that did or purported to do so came back with claims along the following lines of, well, Julian and Nick don't purport to reject any or every non-delegation doctrine or like any version of the non-delegation doctrine. So like one still might exist. I guess like that's not really what I took from the article, but I would be curious like, you know, if that's your take on your research, because what I read is the Constitution of the founding contained no discernible legalized prohibition on delegations of legislative power, at least so long as the

exercise of that power remains subject to congressional oversight and control. So like, from what I took from both your description of your claims, as well as the historical evidence was, there was no non-delegation doctrine or principle, broadly speaking, or applied in a more limited fashion than maybe Justice Gorsuch purports to do in his Gundy dissent. So basically, Leah is asking, are the respondents from the originalist position lying too? We take issue with their claims, and we feel that the descriptions of what we've done in some of those pieces doesn't fairly capture the scope of the proof that has been amassed. The question is a profound one, because I think it's one that Nick and I have

ourselves sort of not wondered about, but wandered over almost over the course of talking. What do we mean when you say there's no doctrine? There definitely is no doctrine. But what do we mean when you say there is no doctrine? I think to talk one's way to explaining what we mean, I think it helps to start with the degree to which I, I think more than Nick, have sympathy for some of the instincts that underlie the doctrine, right? Like I have teased Nick for years about his book Project Against Justice, because that's not actually what it's called. But I but but you know, he wants to never review anything an agency does. Agencies are great all the time. So Nick is much more sympathetic to agency rule than I am. I have maybe because I come out of the national security context, a lot of hesitations about broad open delegation from the government, emergency powers.

I have sympathy for this. And I have sympathy for this specifically along the lines that it represents a compromise of the separation of powers and self-interested entities can approve what they're doing. And it's insulated from meaningful outside. I get all of that. And so if I sit down and think to myself, well, had some insanely enormous delegation been enacted in 1794, sort of the equivalent of modern emergency statutes, can I imagine that a bunch of people and probably a majority of them would have started to talk the way that Madison did about the postal roads. I definitely can imagine that. That is the manufacture of constitutional meaning in response to concrete circumstances.

And that rests on a view that right. We're engaged in constitutional construction, not the not the not the discernment of like the brooding omnipresenceresence that's always timelessly the same. But if what's meant, and I think this is what we mean, but maybe I hope Nick agrees, by doctrine is like some articulated set of principles that have been worked out, that have A, been expressed. Forget worked out. They weren't expressed. B, been worked out thoughtfully, or maybe even not that thoughtfully, by somebody somewhere. They weren't ever, not once.

And applied and debated and discussed as a thing that people cared about. And they weren't, not ever, not until the second Congress. What it means to be a doctrine is to have a body of thought, discussion, common understanding, disagreement of the margins. Sure, maybe some people oppose it entirely. But there was no such thing. Can I imagine it emerging if the scope of modern federal delegations have been pressed more quickly? Of course. I mean, they made up stuff right and left in the course of debating policy questions. When I say made up stuff, they made up constitutional objections, right and left, up and down in the course of the 1790s when discussing things they

didn't like. If you didn't like it, you constitutionalize it. Some wonderful quotes of, you know, delegates mocking each other for basically like, oh, you're always saying that everything violates the Constitution. And it didn't happen, not ever in the first Congress. It was stuff that absolutely would have had to have triggered it. And so I'm going on too long again. But what it means to say there's no non-delegation doctrine is not that people might not have been uneasy with massive delegation or leading care about

the separation of powers, but doctrine means something. It means like a body of thought, or at least a vague commitment, and there wasn't any. I'm not sure I'm not. Yeah, I'll add only, you know, our project is really narrowly targeted at this originalist claim that at the moment of fixation, there was a well-understood doctrine out there, at least at a reasonable level of generality, separating the good from the bad delegations. Could you reason your way as a matter of the living constitution to a non-delegation doctrine? Sure. I don't think it'd be a great idea for lots of reasons I'm happy to talk about, but I just want to be very clear that that's not an originalist claim. So maybe we could return to an example that you've alluded to, which is the post-Roads

debate, which is often a key piece of evidence for the originalist case for the non-delegation doctrine, which you discuss in the article. Maybe our listeners might appreciate a summary of this. But basically, TLDR, Congress first thought it would specify where roads would run through. Then Congress was like, no, we'll let the president decide that. Madison objects saying that would be unconstitutional. And then Congress does it anyways. And therefore the EPA is unconstitutional. Like, so I guess Julian, you kind of answered my question, but like, how good of evidence is that for the doctrine? I mean, it's funny. So this is the best evidence. And I'm not, like, I'm not overstating the case.

This is literally the originalists best evidence from the founding era. And it's about citing a post roads, which first right out of the gate, like that would violate like a delegation giving to the president, the authority to decide where the postal routes run. Like that would violate no version of the non-delegation doctrine that is under discussion in conservative legal circles today. So even if you thought that there was a doctrine that raised doubts about a delegation involving post roads, I don't exactly know what that teaches you, except that, I don't know, maybe like everything we're doing violates the constitution. I don't even know what the claim is, right? But set that aside, you can see if you actually go back and read the debates, which apparently none of the originalists have actually done, start to finish, you can

actually see that when the proposal is made to give to the president the authority to cite the post-roads, and then the objection is raised that that would violate the non-delegation doctrine, there's an explosion of mockery from the people who are actually engaged in the debate saying, are you kidding me? Citing Post Road violates the non-delegate. We delegate things all the time. What are you going to make us do? Become makers of coins? Are we going to have to go and take down members of Congress, go fight pirates on the high seas ourselves? Can I read? I literally pulled that out because I love that. So we should say, you said the objection is raised kind of in the passive voice. And because it is, I think it's the fact

that it is Madison who raises it, that confers some kind of gravitas on the claim. Well, it's not just some member of Congress, it's Madison, and he's saying it violates. But I think your broader point about the routine way in which these policy arguments were framed in constitutional terms sort of answers that objection that the fact that Madison once referred to a constitutional problem in this particular debate somehow settles the question. But the response by this, I think Theodore Sedgwick was the member who basically snarks, as you describe it, that, okay, Congress is also empowered to coin money. If no part of their power be delegable, he did not know, but that they might be obliged to turn coiners work in the mint

themselves. It's like Congress has power. It can't exercise really any of those powers itself. It always has to delegate. And I just, that is one of the many truly delightful historical snippets that emerge from actually doing the hard work of reading the history. Yeah, the thing about the Sedgwick quote that you can go back to the post-roads debate and conclude that there was disagreement between two members of Congress, Representative Page and Madison, who wanted to retain authority of the post roads, which by the way, is exactly the kind of grubby thing that partisan politicians like to do. The postal roads were really key sources of like, citing those roads is important because you get information, you get a market knowledge, you can actually keep

in touch. They were hugely consequential where you cited them. They could make or break towns. And so it's the kind of thing you'd want to retain control over. And like Madison was behaving like a politician here. And like, he's making like motivated constitutional arguments like politicians do. And there's nothing like there's nothing to be ashamed of there, but like, don't be doomed. Right. And at a minimum, like, let's assume that he's making these objections in good faith and drawing on like his own internal sense of what the non-allegation doctrine was. But one thing you can say for damn sure is that no, people didn't agree about it. And then at the end of the day, they reject the proposal to give the president all the authority to cite post roads, but they actually give him residual authority to cite any other post roads

that he decides he wants to cite. So not only does Madison make this objection and everybody's like, you're making this up, old man, but also he then loses on the question of whether or not you're allowed to delegate this authority. So I don't understand how this is good authority for a non-delegation principle that, as Julian started by saying, would knock out the EPA. The Cedric point about coining is just so spot on. Like, of course, you can't have Congress doing so many of the things that have been entrusted to them in the Constitution. Okay, so maybe no member of Congress raised a non-delegation objection that prevailed ever during the initial periods. But what if I found a John Locke quote that vaguely alluded to the existence of a non-delegation doctrine? What would you say then? I was in such a good mood earlier today. It's Friday. Checkmate. Yeah, okay. So there's a quote from Locke.

There's always a quote from Locke. Always Locke. And it too requires us to invalidate the EPA. It is a it is a beautiful example of the kind of sloppy. And then once the error is pointed out, tendentious and dishonest scholarship that has no business appearing in the pages of a reputable journal, let alone a book. Right. Like I was just looking the other day at examples of this in the NRA brief where they cite things that kind of sound vaguely like there's a reference to self-defense, but like absolutely a thousand percent what's being talked about is the defense of the people from tyranny collectively, not like a dude crawling in your window with a knife and you shoot him. Sorry, I'm going to put that away and focus on the question, which is Locke. All right. So there's a bit from Locke, which is just to do it full justice. Right. Because I think that's important. It sounds really bad if you don't read anything else in the 17th century or the 18th century.

But this sentence sounds really bad. The legislative 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. And without getting deep, deep into the weeds on how this is used, like the possibilities for supporting a doctrine are pretty evident. You can't transfer the power of making laws to other hands. That's the legislature's job. And it overlaps nicely with Republican ideals. I mean, you know, 18th ideals of of of legislatures being the true

the truest and best font of authority legitimacy right like it resonates with all that but that's just a thousand percent definitely not what he's talking about neither in the chapter nor in the entire book and especially not in terms of people he's responding to in the course of argument what he's saying is that the legislature can't abandon the project of governance permanently. It can't willingly give complete permanent sovereignty to a monarch that is never undoable because the power comes from the people. The legislature is not able to transfer it. And this is the important point for all the lawyers, mostly lawyers watching this, I suspect, in fee simple. He's talking about fee simple, giving it away so you don't get it back, not handing it to your agent who's going to be at the

market in town trying to decide how much to charge. The idea of handing your affairs in a very big way to somebody who would take care of them for you is deeply embedded in governance and what's happening at this point in english history and it's well understood by the founders is a debate about the very nature of the right to rule a debate and again i'm people who are probably you know political theorists cringing at this the orizontal violence happening here so forgive me but like on the one hand the absolute monarchists who say the power comes from god or something like that, and, you know, maps onto a patriarchal view of the world, wherein the power inheres in the king, it is only by his grace that

anybody else can do anything. The other view is no power comes from the people, and the people always at the end of the day have the right to alter, change, and rearrange the arrangements. And so what Locke is saying is absolutely not. You can't have a theory of absolutism on which at some point, either in the misty past or in the near future, some legislature enacts either imagined or in fact a bill saying, we give all power to the king forever and we can't have it back because it's his now, and we've given it away. Like he's saying, that's not how our political theory works. That's not how the political theory of the parliamentarians works. He's rejecting the idea of absolute despotism being grounded in, at some point, consent by the people. And again, I really want to emphasize this. Not just too much power, but permanent

alienation of all governance rights to a monarch, thereby justifying irrevocable absolutism. He's simply not remotely talking about delegated governance. Leah, let's assume for a minute that he was, because that's a bad sentence, right? So how many times did the framers of the Constitution in ratification debates bring up the second treaties? Oh, zero. How many times does John Locke's name appear in the annals of Congress in the first decade of Congress? All 10,000 pages? Once. And he's said he shows up because his name is cited in an evidence treaties from England. That's it. This quote never appears in the mouths of any of the founders.

Nobody assigns any kind of importance to it. Nobody links it to any kind of non-delegation doctrine. It's just irrelevant. So can we maybe get to the point in the faculty workshop where one of your colleagues asks you, like, where is this all going? What should we do with this? Is there any hope that this 6-3 conservative supermajority will be persuaded by the very richly researched and meticulously archived claims that you offer and be persuaded that maybe they should abandon their cause to completely dismantle the administrative state. So on Friday, July 23, the Sixth Circuit issued an opinion in a case involving the CDC's eviction moratorium. And one of the judges concurred separately just to say, hey, there are some non-delegation concerns here. And the founders believed firmly in a non-delegation doctrine.

And for support, he cites one of our critics and the article that he wrote attempting to refute our work and calls it a day. So I don't think judges who are committed to originalism are looking to get the history right. I think they're looking to launder their claims through something that kind of resembles a historical claims on the face of the page. If I thought that they were truly committed to getting it right, I think the right answer here is to say, look, I'm committed to originalism. I can't apply a non-delegation doctrine. Maybe that means you abandon originalism. Maybe that means you abandon the non-delegation doctrine.

But you can't do both. Not without lying about the history. I feel like you're striking a somewhat pessimistic note about the current Supreme Court. And maybe that's justified. But I mean, I, of course,, play the role of the perpetual optimist on the court. But there's a part of me that says, look, like, you know, this, I am not prepared to say that I'm convinced that Gorsuch and Barrett are totally closed to this kind of incredibly persuasive and, you know, research and supportive work. Yeah. I mean, I honestly, I just feel like I'm not, I don't know enough about his kind of performance on the bench.

One thing I think would help, like, in sort of a real academic politics sense is, like, getting some prominent conservative originalists on board with this project, I think, would absolutely help. And it's, like, so cynical, but I think true that that would, you know, make a big difference if there was work to cite from kind of, you know, prominent conservative originalists that said, you know, Nick and Julian actually get the history much, much better. And this is right. Maybe that make a difference. But even without that, I don't know. It seems possible

to me that this actually does move the needle at least somewhat. But I gather that Melissa at least is like, no, that's wrong. That's not going to happen. So I'm glad, Nick, you mentioned the Sixth Circuit decision, because I think that what that underscores is my fear, which is even if, let's say, five or six justices don't go whole hog into the non-delegation doctrine and start striking down the EPA, the CDC, you know, you name it, what they would do is misconstrue or narrowly interpret statutes or narrowly confined delegations of authority to agencies to make it difficult for agencies to adopt regulations on the basis of these concerns, loosely rooted in non-existent history, more rooted in ideas about political theory and liberty. And so they would use it not to invalidate statutes, but to narrowly interpret them. You know, like we talked about at the end of this last term with the court narrowly interpreting the Voting Rights Act and Brnovich, you know, the court can do a lot of damage with statutes and regulations that way, in addition to invalidating

them. Yeah, I think that's how it's going to happen. You don't need, this is like the equivalent of should you overrule Roe v. Wade? You don't need to, to accomplish all your goals. So why bring out the big guns of constitutional invalidation when you can just cripple a statute through narrow interpretations? We've seen that happen, not only in connection with the CDC eviction moratorium cases, but we've seen non-delegation doctrine claims arise in other settings as well. The one that leaps out to me is the Wisconsin Supreme Court's narrowing of the governor's emergency powers. And they did so not by striking down the governor's emergency orders in response to COVID, but

by narrowly interpreting them. And a couple of justices wrote separately to say, hey, these raise non-delegation concerns. So yeah, I think that's what's going to happen. And I think anytime you find a delegation that strikes you as just too broad, you find a big justification to narrow it and wipe your hands and call it a day. That's so weird because I was told that a revival of the non-delegation doctrine would only endanger or was more likely to endanger Trump policies rather than any progressive ones? Yeah, no, I think what I've heard is that basically we're apologists for tyranny and tyranny of the Trump style. And look, I mean, here's another way of understanding why I find this debate so frustrating.

The non-delegation doctrine is held not to apply in the context of foreign affairs. It doesn't really apply when it comes to immigration. It doesn't really apply whenever it seems to come into conflict with things that conservatives would really like the president to have a lot of authority to do. So they've kind of gerrymandered the doctrine to make it hard to regulate private conduct, which is to say to adopt environmental regulations or safety regulations. And, you know, it gives the game away that this isn't really about high principle. regulations. And, you know, it gives the game away that this isn't really about high principle. This is about, you know, a political agenda. And again, like, I'm not even saying that that's like all bad, right? Like, of course, Supreme Court

justices are political actors. I wish we were more upfront about that and we understood it better. But like, yeah, they've got an agenda, but like, just don't hide behind history. Maybe we could pivot now to just a couple of other topics that we wanted to at least get some initial thoughts on before we close the conversation. And those are kind of related issues of administrative law and the courts and the Supreme Court in particular. And one is the Supreme Court's presidential removal and appointment jurisprudence. So we have talked in particular at the end of this last term about the court's appointments and removal cases, which in general terms seem to give more power to the

president to control the work of agencies or the executive branch. Non-delegation obviously would give less power and authority to the executive branch broadly and empower Congress, at least nominally. So how do you think about these two trends together? Right? Like, is the court on balance, more interested in empowering or disempowering the executive vis-a-vis Congress? Or is like one unifying theme, the court just arrogating power to itself in both of these kind of lines of cases? Pollyanna who? What? Not a removal, appointment removal. I'm not at all Pollyanna-ish. But yeah, what do you guys think? I think there's genuinely two things going on

and surely more than that, but two things jump out to me is going on in terms of the deeper values commitments of the people who are pushing in this direction at the same time. And they come apart in some interesting ways, possibly in certain circumstances. One is clearly being opposed to experts and elites running things and telling

the rest of us what to do. And that not only, but in part populist strain goes back a really long way in American politics. And so there's an anti-expertise thread and there's also a less government thread and i actually think those two things are different some people think this entire game is just about you know pragmatically speaking if you don't if you can't delegate discretion there's no way that congress can legislate in the detail the court's going to require so what it means is there will be regulation i mean i think for some people that's the game. But the way that I sort of understand the appointments removal stuff, cohering with Chevron, you know, retrenchment on Chevron,

and cohering with non-delegation doctrine, is that you're prioritizing the control of the democratic process over policymaking by making sure that the president can add or subtract anybody he wants anytime he wants, and by making sure that the courts are going to demand the political process generate via legislation rather than by expertise the details of policy that's going to govern important issues. So I see those two things as being genuinely distinct. And I think that especially the anti-expertise sort of populist thread of all this is one way to think about the appointment removal stuff actually being relatively consistent with at least the non-delegation stuff. And for those listeners who

would be interested in this, we would definitely encourage them to read not only Delegation at the Founding, but also Julian's other work on the executive power, which is super relevant to thinking about whether the vesting clause in particular and the granting of executive power to the president give rise to this notion that the president needs to be able to control the work of and direct policy outcomes of agencies under the formal umbrella of the executive branch, or that agencies cannot be in the business of interpreting the statutes they administer. So in particular, I would just highlight one closing quote from your work before we let you go, which is, sophisticated discussions from the founding recognize that efforts to classify government action in the abstract are irreducibly indeterminate. And

maybe that's where we will leave things. Thank you all so much for having us on. It's really just a delight. It's been a lot of fun. Thank you. So everyone else get ready to party like it's 1935 or something like that. Thanks to Julian and Nick for coming on the show. Thanks to Melody Rowell, our producer. Thanks to Liam Bendixson, our summer intern. Thanks to Eddie Cooper for making our music. We wanted to note that this episode was recorded before January when Nick Bagley took a leave to work in the governor's office here in Michigan. Bye everyone.