Originalism Isn't What It Used to Be: The Nondelegation Doctrine, Originalism, and Government by Judiciary

Chapman Law Review Volume 24 Issue 3 Symposium: A Discussion on the Nondelegation and Chevron Deference Doctrines Article 4 Spring 5-1-2021 Originalism Isn't What It Used to Be: The Nondelegation Doctrine, Originalism, and Government by Judiciary Kurt Eggert Chapman University Dale E. Fowler School of Law, Follow this and additional works at: https://digitalcommons.chapman.edu/chapman-law-review Recommended Citation Kurt Eggert, Originalism Isn't What It Used to Be: The Nondelegation Doctrine, Originalism, and Government by Judiciary, 24 CHAP. L. REV. 707 (2021). Available at: https://digitalcommons.chapman.edu/chapman-law-review/vol24/iss3/4 This Article is brought to you for free and open access by the Fowler School of Law at Chapman University Digital Commons. It has been accepted for inclusion in Chapman Law Review by an authorized editor of Chapman University Digital Commons. For more information, please contact . CHAPMAN LAW REVIEW Citation: Kurt Eggert, Originalism Isn’t What It Used to Be: The Nondelegation Doctrine, Originalism, and Government by Judiciary, 24 CHAP. L. REV. 707 (2021). --For copyright information, please contact . CHAPMAN UNIVERSITY | FOWLER SCHOOL OF LAW | ONE UNIVERSITY DRIVE | ORANGE, CALIFORNIA 92866 WWW.CHAPMANLAWREVIEW.COM Do Not Delete 5/19/2021 12:57 PM Originalism Isn’t What It Used to Be: The Nondelegation Doctrine, Originalism, and Government by Judiciary Kurt Eggert “[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. . . Ambition must be made to counteract ambition.” – James Madison1 “[Originalism’s] greatest defect, in my view, is the difficulty of applying it correctly. . . [I]t is often exceedingly difficult to plumb the original understanding of an ancient text.” – Justice Antonin Scalia2 “[Montesquieu’s] meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted.” – James Madison3 “I’m an originalist; I’m a textualist; I’m not a nut.” – Justice Antonin Scalia4  Professor of Law and Director of the Alona Cortese Elder Law Center at Chapman University Fowler School of Law. J.D., UC Berkeley School of Law, 1984. B.A., Rice University, 1981. I would like to thank Clare Pastore for her invaluable comments and editing help on this Article. I would also like to thank Scott Altman, Steve Hitchcock, Joel Farrell, Katherine Eggert, and Nicholas Westberg for their thoughtful comments and Laura Fry for her advice on research methods. This Article was presented at the 2021 Chapman Law Review annual symposium, A Discussion on the Nondelegation and Chevron Deference Doctrine, and I appreciate the comments of the other panelists in the session on nondelegation, Richard Epstein and Jack Beermann, and the moderator Tom Campbell. Members of the Chapman Law Review have provided outstanding editing and support, especially Sirine Yared and Ariel Romero. Any errors are of course mine. 1 THE FEDERALIST NO. 51, at 268 (James Madison) (George W. Carey & James McClellan eds., 2001). 2 Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 856 (1989). 3 THE FEDERALIST NO. 47, supra note 1, at 251 (James Madison) (emphasis in the original). 4 Jeremy Telman, Explication Du Texte: "I'm An Originalist; I'm A Textualist; I'm Not A Nut", 50 VAL. U. L. REV. 629, 629 (2016). 707 Do Not Delete 708 5/19/2021 12:57 PM Chapman Law Review [Vol. 24:3 I. INTRODUCTION The originalist defenders of the nondelegation doctrine, the purported constitutional rule that Congress cannot delegate its legislative rule-making power to federal agencies, have constructed an elaborate myth to justify that doctrine, which is found nowhere in the Constitution. According to the originalist myth, John Locke articulated that doctrine in his Second Treatise of Government of 16895 and so influenced the Framers of the Constitution that they somehow worked it implicitly and invisibly into the Constitution. And hence the Constitution’s original meaning includes the nondelegation doctrine. Such nondelegation defenders assert that the Constitution strictly limits the delegation of legislative power by Congress, even if it does not prohibit it entirely, and that there is a veritable trove of evidence showing that the nondelegation doctrine was firmly established at the Founding. Some treat James Madison as the patron saint of the separation of powers and argue that the fact that Madison unsuccessfully attempted to include the nondelegation doctrine in the Constitution shows that it is somehow inherent in that document. None of that myth is true. Or rather, the available historical evidence strongly indicates that the myths asserted by such defenders of the nondelegation doctrine are false. Locke’s greatest influence on the colonists came before the Revolution, at a time when the colonists were considering whether to revolt from Britain. Once the Revolutionary War started, Locke’s influence in the colonies plummeted. At the Constitutional Convention, Locke had little apparent influence, and even that seems to have been on the Anti-Federalists, rather than with the Framers. The drafters and ratifiers of the Constitution little discussed the delegation of legislative powers, let alone what limits there should be to such delegation. Madison was far more concerned, even fearful, that Congress would encroach on the powers of the Executive and the Judiciary than he was about Congress excessively delegating its powers. Madison even urged including in the Constitution provisions that would have mandated that some legislative policy-making power be delegated to the Executive and the judiciary, in the form of a Council of Revision, a council made up of the Executive and selected members of the national judiciary to exercise what was then called the revisionary power. 5 JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 1980). § 141 (C.B. Macpherson ed., Do Not Delete 2021] 5/19/2021 12:57 PM Originalism Isn’t What It Used to Be 709 When a nondelegation provision was proposed at the Constitutional Convention, it was rejected. When an amendment was proposed to the Constitution as part of the Bill of Rights that would have prohibited each branch of the government from employing the powers of another branch, it was rejected by the Senate. Congress, since its inception, has delegated legislative power with relative abandon, and doing so was not held unconstitutional until 1935 and never again after that year. Why would originalists push such obvious and unconvincing myths? How could a supposed “constitutional (...truncated)