This essay responds to the wide range of commentary on Delegation at the Founding, published previously in the Columbia Law Review. The critics’ arguments deserve thoughtful consideration and a careful response. We’re happy to supply both. As a matter of eighteenth-century legal and political theory, “rulemaking” could not be neatly described as either legislative or executive based on analysis of its scope, subject, or substantive effect. To the contrary: Depending on the relationships you chose to emphasize, a given act could properly be classified as both legislative (from the perspective of the immediate actor) and also executive (from the perspective of the authorizing principal) at the same time. As a formal matter, the separation-of-powers objection is thus evanescent—subject to trivial reframing. In making rules pursuant to congressional instruction, administrative agencies are simultaneously exercising both legislative power (by promulgating authoritative legal commands) and also executive power (by implementing Congress’s authoritative instructions). This is not a functionalist argument. It is an insistent demand to take formalism seriously: The same government action was understood as both executive and legislative in a strict conceptual sense. The originalist argument for nondelegation doctrine fails on its own terms.
Mortenson, Julian Davis and Nicholas Bagley. "Delegation at the Founding: A Response to Critics." Columbia Law Review 122, no. 8 (2022): 2323-2365.
Originally published as Mortenson, Julian Davis and Nicholas Bagley. "Delegation at the Founding: A Response to Critics." Columbia Law Review 122, no. 8 (2022): 2323-2365.