Towards Nondelegation Doctrines

Randy Barnett (00:03):
Okay, welcome. Thanks for coming.

I am not going to be doing all the introductions. My job here as the faculty director for the Georgetown Center for the Constitution is to welcome to Georgetown, those who are part of the project on originalism at the… Oh God, I knew I was going to get it wrong. The new project on originalism at Catholic University.

And I want to tell these guys that they’re more than welcome here. I believe that there really should be an originalism center at every law school. There are not enough originalism centers, so I’m very happy to have another one in town and to co-host this event.

And I, myself, am very interested in this topic. I truly hope there is a non-delegation doctrine. I’m rooting for it, and I’m going to be interested in hearing what’s to be said on behalf of the multiple non-delegation doctrines.

So with that, I’m going to introduce Kevin Walsh, who is the co-director, a longtime friend of mine and a professor originally at the University of Richmond and now at Catholic to do the formal introductions.


Kevin Walsh (01:20):
So good evening everyone and thank you for being here. As Professor Barnett said, my name is Kevin Walsh. I’m the co-director with Professor Joel Alicea of the Project On Constitutional Originalism and the Catholic Intellectual Tradition.

You’re familiar with constitutional originalism. The Catholic intellectual tradition is a millennials long tradition of philosophical and theological reflection that includes figures such as Saints Augustine and Aquinas, as well as those who did not hear the gospel of Aristotle, for example, or Cicero.

So there’s a long tradition that gets carried forward. We advance our mission through lectures, through panels like this evening’s, through fellowships for young professionals, and for students as well as through curricular offerings.

We are very grateful to the Georgetown Center for the Constitution and Professor Randy Barnett for hosting us this evening. We look forward to a very productive collaboration in our nation’s capital.

My job now is to introduce our moderator, Judge Trevor McFadden.

Judge McFadden was appointed to the United States District Court for the District of Columbia in 2017.

Prior to that, he served as Deputy Assistant Attorney General at the US Department of Justice, and as a second in command of the department’s criminal division.

Judge McFadden was a partner at Baker and Mackenzie, and in his first stint at the Justice Department, served as counsel to the Deputy Attorney General and as a USA in the District of Columbia.

Also served as an officer with the Fairfax County Virginia Police and a deputy sheriff in Madison County. Judge McFadden received his undergraduate degree from Wheaton College and his law degree from University of Virginia, after which he clerked for Judge Steve Coton on the eighth Circuit.

Judge McFadden, welcome and thank you.

Trevor McFadden (03:18):
Thank you, Kevin. Great to be with you all this evening.

The non-delegation doctrine, that is a theory that there are some legislative duties that Congress cannot constitutionally entrust to any other body is a bit like Captain Ahab’s white whale. It’s spoken of frequently but rarely seen.

Indeed, it’s almost been a century since the Supreme Court has relied on the non-delegation doctrine to strike down a statute or agency action, but there are telltale signs that it may be about to burst, Moby Dick-like, from the depths of watery precedent.

In recent years, five of the current Supreme Court justices have invoked this doctrine either in dissent or concurrences, calling for its reconsideration and possible reinvigoration. The court has also repeatedly invoked the major questions doctrine in the last two years, which I think is a bit like the younger brother to the non-delegation doctrine.

And only earlier this year, the Fifth Circuit relied in part on the non delegation doctrine to find that Congress unconstitutionally delegated to the SEC complete discretion to bring certain enforcement actions either in front of a federal jury or in front of the SEC’s own administrative law judge.

Invoking language from a 1920s Supreme Court decision, the Fifth Circuit found that Congress had given the SEC no intelligible principle to apply when making this decision.

As it turns out, that intelligible principle requirement has been itself criticized for being rather, unintelligible.

Justice Scalia explained, “While the doctrine of unconstitutional delegation is unquestionably a fundamental element of our constitutional system, it is not an element readily enforceable by the courts once it is conceded, as it must be, that no statute can be entirely precise and that some judgments, even some judgments involving policy considerations must be left to the officers executing the law and to the judges applying it. The debate over unconstitutional delegation becomes a debate, not over a point of principle, but over a question of degree.

Little wonder then that the Supreme Court has only invoked the intelligible principle requirement a few times in history to strike down agency actions, and that long ago.

Today, we have the privilege to hear from Professor Chad Squitieri who suggests that there might be a better, more constitutionally faithful way to judicially manage, and I should say, and judicially manageable way to approach non delegation issues.

Professor Chad Squitieri is at the Columbus School of Law at the Catholic University here in town. He is just newly joined there coming from Gibson, Dunn and Crutcher here in D.C. where he practiced appellate and administrative law cases.

Previously, he was also a special assistant to then Secretary Gene Scalia at the Department of Labor. He’s a law clerk to Judge Brooke Smith on the Third Circuit. He’s also a graduate of UVA Law, excited to see, and he is a 2013 graduate from Florida State University.

With him on the dais is a fellow Third Circuit alum, professor Christine Chabot. She is the distinguished professor in residence at Loyola University School of Law where she teaches administrative law, antitrust and sales.

She clerked for Judge Jane Roth on the Third Circuit, graduated from the Notre Dame Law School, magna cum laude, and has her bachelor’s from Northwestern University.

This evening we’ll hear from Professor Squitieri on his theory that there are actually multiple non delegation doctrines and after that we’ll hear from Professor Chabot as his interlocutor.

And then most importantly, there is an opportunity for questions from you all. So please be thinking about any questions you may have, and we definitely want to save time for those at the end.


Chad Squitieri (08:15):

Well, so great to see so many of you this afternoon. Thank you to Professor Barnett and the Georgetown Center for the Constitution for having us, to Professor Chabot for her comments today, and of course, to Judge McFadden for agreeing to moderate.

I want to start by cutting right to the chase. My argument is that the Constitution is textually committed to a non-delegation principle, but this principle should be applied not through a single, one size fits all non delegation doctrine, but should instead be applied through multiple power specific doctrines, each one corresponding to one of the unique powers vested in Congress.

So my talk today will proceed in three parts.

In part one, I’ll provide a brief overview of the current doctrine and what I see as its problems. In part two, I’ll outline my argument, and in part three I’ll discuss some of the benefits that I see as flowing from my argument.

So part one, the current non-delegation doctrine and some of its problems.

The current non delegation doctrine is entirely focused on defining legislative power, and that’s because the doctrine is said to prohibit Congress from delegating its legislative power to other entities, and specifically these are typically administrative agencies.

So tasked with defining legislative powers, courts have had to distinguish what the legislative power is and distinguish that from the judicial and the executive power.

And now, at some level of abstraction that’s not too difficult of a task where we go through our days as lawyers knowing that Congress legislates, the executive executes the law, and the judiciary applies law to particular sets of facts.

But when one thinks a bit more deeply about how do we distinguish those three federal powers at the margins, it becomes apparent that it’s not so easy of a task.

So I’m here reminded of a quote actually by St. Augustine who when discussing the concept of time, and I’m paraphrasing here, he says, “I know what time is so long as someone doesn’t ask me. But as soon as someone asks me to explain what time is, well then I don’t know.”

And having only taken an introductory course of physics, I can relate to that sentiment, but I also think we have a similar situation when it comes to defining legislative power.

So tasked with the difficult task of defining legislative power, courts have done their best and they have developed the intelligible principle test. The intelligible principle test is the current test for the non-delegation doctrine and it essentially holds that Congress may delegate decision making authority to other entities so long as Congress cabins that authority with intellectual principle test.

But as Judge McFadden hinted at in his introduction, the intelligible principle test has not been very intelligible itself.

It’s been very difficult to apply. And indeed the Supreme Court has only invoked a doctrine really twice to hold particular delegations to be unconstitutional, both in 1935.

So although courts haven’t really applied the non-delegation principle with much teeth over the last several decades, scholars have continued to debate the doctrine. And these scholars have put forward a variety of different tests to replace the current non-delegation test.

And I’ll highlight just one here tonight, which I see as the leading alternative test, which is the important questions test.

So the important questions test essentially holds that Congress must answer the important questions itself, but Congress can delegate the authority to answer unimportant questions to other entities.

I see the important questions test alternative as really just a lateral move from the intelligible principle test. And what I mean by that is that I think both the intelligible principle test and the important questions test suffer from the same problem at the core of the test. And that is that they just come at the non-delegation inquiry at far to abstract of a level to be helpful.

So consider an example. If I were to ask you what is an important food, what is an important food? Well, that question is difficult to answer in the abstract food that might be important for breakfast, might be very different from food that is important for dessert.

But as we narrow the question, it becomes easier to answer. So if I were to ask what is an important dessert food or what is an important Italian dessert food, well then some answers start to appear more correct than others.

So tiramisu, that’s arguably an important Italian dessert food. Scrambled eggs is probably not an important Italian dessert food, at least it’s not at my Italian grandmother’s house.

So I think that example is helpful because it demonstrates the problem of the current non-delegation doctrine and the alternative test that it just comes at the question at far too abstract of a level.

And I think the example also helps showcase the solution, which is to narrow the question and make it easier to apply.

So that brings us to part two of my talk, my proposal to replace the current non-delegation doctrine with a series of multiple doctrines.

Now, I have three justifications for abandoning the current non-delegation doctrine and it’s focus on defining legislative power.

So the first justification for abandoning that is a textual justification.

So nowhere in the Constitution is the term legislative power used. In a sense, that’s shocking. Congress is not vested with the legislative power. Congress is instead vested in Article one with all legislative powers, plural here, and granted, and we can juxtapose that against the vesting clauses of articles two and three.

Article Two refers to the executive power, short and simple, singular. Article three refers to the judicial power, short and simple, singular.

So my first argument is that something special is happening as a textual matter in Article one with Congress. And so the current non-delegation doctrines focus on legislative power. You can pull up the recent Supreme Court cases as probably even this last term. They still use the term legislative power. I think that’s mistaken as a textual matter.

The second justification for abandoning the current non-delegation doctrine in its focus on defining legislative power is historical.

So the framers were particularly concerned with vesting too much authority into the federal legislative department. They were certainly concerned with vesting too much authority in any of the three federal branches, but they were perhaps particularly concerned about an all powerful Congress.

You can think about Federals 48, Madison referring to the legislative department drawing all powers into its impetus vortex.

And not to put him on the spot, but Judge McFadden actually has a great opinion out just last week talking about, and the speech or debate clause context, some of the fears about an all powerful parliament

So what did the framers do if they’re really worried about vesting too much authority and to the legislature?

Well, they created a two chambered body that are elected by different entities and for different terms, which means they might often be in tension, and then they only assigned that two chambered legislative department specifically enumerated legislative powers, not all of the legislative power, whatever that might mean exercisable by say perhaps state legislatures or parliament.

So that’s the first two justifications, textual, historical.

The third justification is that the current non-delegation doctrines focus on defining legislative power misses out on some of the unique powers that are vested in Congress.

So when the framers were splitting up the powers between the three federal branches, one of the things they did is they looked at the royal prerogatives exercisable by the English monarch, and instead of signing those prerogative powers to the president, right, we’re not making a king, we’re making an American president, the framers split up some of those powers.

So consider, for example, Congress’s authority to declare war or Congress’s authority to regulate the militia. If we were to ask a political scientist, is the power to declare war an executive or legislative power, I think it’s at least arguable that declaring war is an executive power. It happens to be vested in Congress. So my narrow point here is only that by focusing on legislative power, we’re actually missing out from the start some of the unique and important powers that are vested in Congress.

So that’s my three justifications for abandoning the current doctrine. That raises a logical question of what should we replace it with?

Before diving into my proposal, what we should replace with, I just want to have raise one caveat, which is that in the paper we’re discussing today, I only provide a framework for developing multiple non-delegation doctrines.

And that’s because I don’t purport to be an expert in every nook and cranny of the constitution. I don’t think Joseph’s story or Madison could even purport to do that. So I’m not an expert in both of Congress’s taxing powers and Congress’s power to declare war, and Congress’s power to punish piracies.

Instead, I provide textual analyses that I invite scholars who are experts on all those powers to use the tests I propose and develop crystallized non delegation doctrines over time.

So with that caveat out of the way, I’ll introduce my proposal, which is it’s helpful to recall that Congress is not vested with the power to make law to declare war. Congress is not vested with the power to make law to coin money, not vested with the power to make law to punish piracies.

Congress is instead vested with the power to declare war, not make law to declare a war, just declare a war. Not make law to coin money.You get my point.

Where does the make law part come from? That comes through the Necessary and Proper Clause.

So as a reminder, Article one, Section eight of various authorities and Congress and at the very end is a Necessary and Proper Clause which says, “Congress shall have the power to make all laws Necessary and Proper to carry into execution the foregoing powers,” and those are the Article one, Section eight powers, “And all other powers vested by the Constitution in the government of the United States or in any department or officer thereof.”

So because congresses make law, authority comes through the necessary proper clause and is conditioned by that law being necessary and proper. I think that the proper textual analysis to determine if a particular delegation is constitutional is to ask if it’s necessary and proper.

So if Congress says, “Hey, we want to exercise one of these authorities by passing a law to delegate some decision making authority,” what we should ask, “Is that delegation a Necessary and Proper means of carrying that power into effect?”

So that’s my argument.

And so in the paper, I slogged the reader through a bunch of textual analyses that I’m not going to bore you all here with today. If you’re interested, check out the article, Towards Non-delegation Doctrines in the Missouri Law Review. And I put the various tests, the fruits of those efforts in rectangle boxes so you can flip through and find it pretty easy.

Instead, I think I want to go through three examples of how the test would apply in practice. So the first example refers to Article one, Section eight, Clause five. And in that single clause, Congress is vested with multiple powers including the power to coin money and the power to regulate the value of such money and a foreign coin.

And so if we look at the 1792 coin eject, we see that Congress has delegated those two authorities a bit differently.

So when it came to the authority to coin money, we don’t see Congress saying, “Hey, we have to go determine how hot to make the flame to put the copper over and how hard to press the copper and all that.” We see Congress saying, “Hey director of US Mint, go hire people and hire an engraver and all this and make the coins.”

So a broad delegation of that small power.

In the same act, we see Congress when it came to regulating the value of that money legislating with a lot of precision. So Congress said there’ll be eagles and half eagles, and quarter eagles, and dollars and half dollars, and so on. And here are all the various precious medals that those coins should have, and here are the various values that those coins shall have pegged to the Spanish dollar.

So I like this example because it shows in a single clause of the Constitution, two different powers being delegated differently by the same piece of legislation. And it’s a fairly early piece of legislation, 1792. So it just goes to show how specific of the doctrines are that I’m calling for.

The second example refers to the territorial clause authority in Article four. As you recall, Congress is vested with authority throughout the Constitution, not just Article one.

Territorial clause authority gives Congress the authority to make all rules and regulations respecting the territories or the property of the United States.

So from the Northwest territory onward, which of course, predates the Constitution, we see Congress establishing territorial governments. When Congress is establishing those governments, we see Congress saying, “No, go make territorial contract law. Go make territorial tort law. Go make the 18th Century equivalent of territorial speed limits.”

Now, as a baseline level, I don’t see that as a delegation of authority. I see that as that is how you exercise the territorial clause authority. You create territorial governments.

But even if you were to reject that and see those as delegations of territorial clause authority, I would posit that hey, well the objective reader positioned in 1788 would look and say, “You know what? Establishing territorial governments is a Necessary and Proper means of exercising that territorial clause because we haven’t invented the internet and the telephone yet, and it’s very hard to communicate with these territorial governments and far flung portions of the continent in the 18th century.”

The third and final example refers to the amendments because, of course, Congress is vested with various powers at various points in time in the amendments as well.

So we can consider the reconstruction amendments 13, 14, 15 and compare that to the 23rd amendment, which essentially gives Congress the authority to enforce the power of D.C. To appoint presidential electors.Okay, so 13, 14, 15. Huge societal undertakings eradicating the effects of slavery and discrimination. That is not something that Congress can handle itself as a bunch of people in one building in Washington D.C.

Further recall, those amendments are ratify at a time when union troops are still dispatched to the southern states. So an objective reader at the time of those amendments are ratified, I posit would hold that Congress is going to need to delegate a lot of authority to take on this huge societal event.

Compare that to the 23rd amendment. We’re in D.C. We like voting for president, it’s important, but Congress doesn’t need to delegate as much authority to handle that. That’s something more that Congress can handle itself.

So those are the three examples, and I’ll just briefly, because I’m sure I’m running out of time, go to the third part of my talk, the benefits that I see is flowing from that proposal.

The first is that I think developing multiple doctrines can create judicially manageable standards for the non-delegation principle.

So recall the current intelligible principle test has not been easy for courts to apply, but by requiring courts to hue much more closely to specific constitutional texts of specific powers, that would be easier for courts to apply.

And thinking back to my tiramisu, scrambled eggs example, as you get more narrow it’s easier to apply.

The second benefit is that I think it makes a feature out of what might otherwise be seen as a bug in the current non-delegation doctrine.

So C for example, Justice Gorsuch’s opinion and Gundy where he noted that in the foreign affairs context for example, courts have allowed Congress to delegate power quite broadly to the president. And also in with courts developing their own internal procedures, again, we see courts allowing Congress to delegate to courts much more broadly.

In a world where there’s just a single uniform non-delegation doctrine, those two examples of applying differently seem to be one off unprincipled exceptions to a single doctrine.

But if you recognize that the non delegation principle is applied through different powers, what makes sense that the non delegation principle would be applying differently in different contexts because they’re actually different doctrines.

And the third and final benefit is that I think by applying multiple doctrines, you can lessen the risk that a revival of the non-delegation doctrine would spell disaster for the modern administrative state.

I think that concern of undermining the current administrative state might be, I’m just reading tea leaves here, why the Supreme Court has been hesitant to reinvigorate the current non-delegation doctrine. And perhaps that’s why the Supreme Court is using the little brother type example of the major questions doctrine, which I’ve criticized in other work.

I think it would be better for the court to apply multiple doctrines because recall if the court were to apply one doctrine to hold one delegation of one power unconstitutional, that need not have destabilizing effects of other delegations of other powers because separate analyses would still need to be made.

So that’s my talk for today and I very much look forward to Professor Chabot’s comments.

Christine Chabot (25:51):
Okay, thank you so much to my co-panelists and hosts today. So we are here talking about this separation of powers problem, non delegation. Does Congress hand off too much power to the executive branch when it passes capacious statutes that hand off seemingly legislative questions to the executive? So we have the executive as the one making the laws rather than Congress. And as been talked about today, it doesn’t seem that courts have been very good at addressing this issue at the constitutional level. They have a toothless intelligible principle test.

And before I talk about Chad’s analysis, I think an important threshold question might be how much does that constitutional issue matter in light of the Supreme Court’s recent decision in West Virginia versus EPA because they seemed to, at some level, dodge that question, and instead of addressing the constitutional issue, they adopt an interpretive principle, the major questions doctrine in which they were able to narrowly interpret statutes that seemed to hand off broad power, at least when you have a very important question that seems to have vast ramifications for political and economic concerns that are presented in an unheralded manner in vague statutory language. So that interpretive construct that the court adopted might obviate the need to turn to the underlying constitutional question.

And at some level, I think the major questions doctrine there should be very unsatisfying for somebody who’s interested in a more formalist, originalist view of the Constitution because it is a pretty mushy open ended test. It was something that has, and I know it when I see it flavor to it, what counts as a major question. And Justice Kagan and her dissent called the major questions doctrine adopted by the court, a get out of text free card.

So there’s something lacking perhaps in the current doctrine that the court has used on an interpretive level and I think that really leaves an important space for Chad’s work, and efforts to do a better job of developing a principled non-delegation doctrine at a constitutional level.And I think Chad should be commended for his efforts to engage carefully with the text of the Constitution. I think that’s something that’s missing from a lot of analyses of non-delegation in this area.

So two main aspects here of Chad’s proposal. So first, he wants to adopt a more nuanced test to have multiple sets of non-delegation doctrines rather than a single one size fits all doctrine. And then the second part of his proposal is to turn to history and I think founding era history to inform the contours of those different tests.

For starters, the idea of more nuanced tests, this is part one of Chad’s analysis, is again, an important move to engage more closely with the text of the Constitution. So if you read Article one, Section eight, you’ll see that what Congress is given power to do does not all fall under the simple category of making laws.

Instead, they reflect the framer’s decisions to assign certain of the crown’s prerogative powers to Congress.

So Congress has the power to lay and collect taxes, borrow money, regulate commerce, coin and regulate the value of money, grant patents and copyrights, declare war, raise and support armies. So a whole mix of different powers.

And even going outside of Article one, Section eight, there are other requirements where Congress must act by law, and for later amendments, they must pass appropriate legislation. So I think it is helpful to try and unpack the textual meaning of all of those powers and parameters assigned to Congress.

I think an important threshold question for Chad is whether he is going to identify a true separate non-delegation doctrine for each legislative power in the Constitution, so I think that might be over 20 different non-delegation doctrines, or whether your proposal might be instead used to identify whether commonalities or differences between certain groups of legislative powers might be used to inform a more nuanced set of non-delegation tests.

That probably goes against the idea of lowering the stakes perhaps, but at some level, as an academic I guess that’s good to be writing in an area where the stakes are high.

I also think given the latter part of your test where you want to turn to history for an answer or analysis, I think if you carve things up into to each legislative power, I suspect the historical record for some of those legislative powers might also turn out to be somewhat thin so you might want to aggregate as well.

So then the question is, well what might be the different groupings that we would consider for more nuanced non-delegation tests?

Chad has already talked about one of the problems of using the major questions threshold as a constitutional non-delegation test. I guess based on my research, a historical research, I don’t think there is a good argument that Congress never delegated major or important questions to the executive branch as a matter of constitutional allocation of powers.

In fact, Congress delegated some of the most important questions. It faced pressing matters of how to manage the national debt, how to preserve the US credit, what to do about patents and intellectual property rights. They’re all broad delegations in those areas. In fact, they delegated to the president the power to borrow up to $14 million with very few parameters on that borrowing power.

So broad delegations of important questions were something that definitely existed at the founding.

Another possible distinction or leading candidate for nuanced argument is to say that perhaps Congress was comfortable delegating broadly in the area of public rights spending and borrowing, but not in areas of legislation that focused on private rights. And here again, I’m not sure that historical record is going to support that type of two-tiered non-delegation doctrine.

Yale Law professor, Nick Parillo has written a very strong paper showing broad delegation of power in the area of taxing. And so I think there were broad delegations in the area of private regulation as well. So that may not be exactly the test that is going to work.

Also my own research on delegation of borrowing power, there’s actually a debate in the first Congress where there was a question of Article one, Section eight vests borrowing power in Congress. Is this something we can hand off to the executive branch? And the answer was yes, so long as there is some limit on the borrowing power, and I took that to be an open-ended non delegation requirement, that you can’t hand off all of your borrowing power to the president, but as long as there’s some cap or limit on the amount to be borrowed, that’s enough under the constitution.

And I think it might be an important point to consider today in the context of Biden’s student loan forgiveness plan, potentially. I haven’t gone into the weeds of the mechanics of that plan, but it seems to me possibly that that loan forgiveness plan could be an area where the president is claiming potentially unlimited spending power. Is there anything to stop the loan forgiveness plan from being three to $500 billion versus 10 versus 100 times that amount, and does that create a problem when the president tries to grab that much power in that context?

A final tack for Chad to consider in his contextual nuance test might be a broader structural approach that might engage with Phillip Hamburger’s work and broad conception that perhaps the legislative power generally is what we might think of as the will or judgment and the executive power is the force and how does that conceptualization interact with the text of the constitution.

So for example, congress has textually given the power to both lay and collect taxes and I think laying taxes might be a matter of will, but also collecting taxes seems like a matter of force. And how do you reconcile that broader theory about what counts as an executive or a legislative power with the actual textual grant in the constitution?And so those are my thoughts on arguments for nuanced non-delegation doctrine, and now I’m going to turn to the second part of Chad’s analysis which says we should turn to history as our test of how non-delegation should work or how these powers were allocated.

And the initial question you need to ask with history is which history? Now here Chad has chosen an originalist framework and I think that is the ascended or perhaps predominant framework on the Supreme Court, but even within originalism there’s a question of are you going to look to pre-ratification history? Are you going to look to post-ratification history?

In this area, I think it’s hard to draw strong conclusions or clear conclusions from pre-ratification understandings of separation of powers issue. The US Constitution was at many levels designed to create something new, and Chad has cited in his paper a lot of work and scholarship that turns to post ratification understandings.

And I think you could think of these post ratification understandings often reflected in debates or legislation that was passed by the first federal Congress as something that will bow might call reflected light, that these arrangements and structures that were reached in the shadow of the newly minted Constitution should be pretty good evidence of how that constitutional structural requirement was understood at the time.

Now this is not going to be perfect evidence. The first Congress was not infallible. We are, of course, not assuming that every statute they passed or structure they approved was per se, constitutional, but I do think that if there were practices and structures that they liquidated or approved time and again, then that might be fairly solid evidence of the constitution’s meaning.

I think an additional point to look at here is how exactly should history be translated to disputes that we have today? And at some level I think there’s a danger in being too narrow in trying to translate original applications of the Constitution and say that those applications are necessarily going to be binding today, because many of the choices that Congress has made in early legislation were choices at their discretion. It didn’t necessarily reflect constitutional meaning. So you might consider the Judiciary Act of 1789 created a Supreme Court with six justices, but I don’t think anyone would argue that that particular statute means as a constitutional requirement that the Supreme Court today have only six justices, so sometimes the choices that early congresses made were ones at their discretion and not ones that necessarily reflected an understanding of the Constitution.

And I think the same thing can come up in the context of delegation in particular, sometimes Congress may have chosen to pass a more narrow statute in a particular area, and I’m not sure that that choice to legislate more narrowly necessarily means that Congress was rejecting the option to perhaps delegate more broadly in a different circumstance or was reflecting a constitutional judgment about the need to pass more narrow legislation.

I think a more fruitful area though for Chad or people that he’s encouraging to write in this area might be to try to contrast areas where early congresses did delegate broadly with areas where they delegated narrowly if there’s a broad delegation that seems at some level perhaps to reject a constitutional understanding that more narrow specific legislation was required, so you might be able to use some of those differences in the scope of delegation to draw and support some conclusions perhaps about nuance tests, some areas where it seems okay to delegate more generously or in more broad open-ended terms and other areas perhaps where Congress had a consistent practice of hewing to more narrow delegations. And perhaps in those areas, those might form in comparison the basis for a potential nuanced non-delegation doctrine.

A final point I would address in terms of relying on history, and I know in Chad’s paper he says that history should be a very manageable analysis or motive analysis for courts to use in adopting a refined test.

Now I guess I would push back on that a little bit, and I know today we’re honored to have Judge McFadden here who was recently noted on the originalism blog for his stellar originalist analysis in a recent opinion. So I think there are many talented judges out there who acting in good faith are going to be making originalist arguments, but I would just like to flag what I see as some of the institutional obstacles that I think will be faced in this area of judges trying to apply historical and originalist analyses to some of these separation of powers or other disputes.

One institutional obstacle I think is that both judges and advocates are trained as lawyers rather than historians and empiricists. And often as lawyers, I think it is acceptable to make an argument and support it with a couple of your best pieces of evidence or best authorities for that particular argument.

But empirically, there is a different, more broader analysis that I think is required where it’s important to try to canvas a comprehensive historical record and not just to pick a few examples in support of your position as lawyers often want to do. And in some of my research on executive power, for example, one of the leading arguments for unitary executive theory turns on an argument in Congress known as the Decision of 1789.

And in that particular area, the Supreme Court has leaned heavily into arguments based on history, but the problem is that the Decision of 1789 was reduced to law in only three statutes in the founding era, and my research does a comprehensive analysis of every public act passed by the first federal Congress. And I found a lot of times in which Congress delegated executive power to actors who were not removable by the president who violated the unitary executive structure.

And I found 70 of these examples in initial and follow on legislation, so there’s danger in using traditional legal analysis, finding one or two examples from the historical record that can present a distorted view at some level of what the actual complete historical record will support.

And I don’t think this is something that’s insurmountable. I don’t have a PhD in history. I don’t think you need PhD or necessarily advanced degree to do a good job in this area, but I do think that comprehensive historical analysis also is something that takes a lot of time and I guess my thought in this area is that we probably should have judges and advocates being consumers perhaps rather than producers of some of the historically centered disputes where for me to produce a paper that does a careful analysis of the historical record. My current paper on executive power, I’ve spent over a year and a half writing that paper in addition to teaching and serving at the law school, etc.

But I think judges, with the many cases they have on their docket, I think that would be a really tall order to expect a judge to be able to devote the same amount of time to a particular opinion.

But I think that’s good news for people in the academy is that this is a time where the legal academy can step up and really try to produce research that is going to be helpful to judges that are writing opinions in the area of originalism and maybe even start thinking about how to train the next generation of advocates and judges to be sophisticated in making and understanding originalist arguments.

My final point here would be one just that just addresses also in the area of our courts well suited. Just to point really about judicial modesty in addressing the historical record. And to me, one of the fascinating things about the non-delegation dispute is that this is just not a split necessarily between Justice Gorsuch on one hand, and Justice Thomas and Justice Kagan on the other.

Justice Scalia was an advocate of the intelligible principle test. He authored the opinion in Whitman versus American Trucking. And I think perhaps that one of the pitfalls perhaps for Justice Gorsuch is his stronger originalist arguments for reinvigorated non delegation doctrine reflects perhaps the risk of being overly confident that history is going to produce a clear answer and perhaps lack of a backup plan in the case that history instead turns out to be perhaps messy or something that doesn’t point to a clear answer in either direction, and I think Justice Gorsuch’s response to new historical research in West Virginia versus EPA reflects that lack of a plan of what to do if you assume the history was going to clearly say one thing and it turns out it’s contested or at least messy.

And in this case, I think perhaps Justice Scalia actually is someone who may have had a better answer to that question.

There was a great Notre Dame Law Review article that then Professor Amy Coney Barrett wrote describing Justice Scalia’s approach to originalism, and she said that when original meaning was clear, he would follow original meaning, but when it was unclear, he was then willing to follow precedent.

And I wonder if there should be some analysis or consideration of what happens if Chad has a ruin launch on these historical explorations of different non delegation doctrines.

And it turns out that the history is unclear, should there be a fallback position to precedent in that case, and maybe people writing this area should not be writing just for Justice Thomas and Gorsuch, but it should also think about maybe how Justice Barrett might approach these problems and is there a precedent based solution in cases where it just turns out that the historical record is difficult to decipher or give a clear answer on original meaning.

And that concludes my comments. Thank you.

Trevor McFadden (46:24):
Thanks so much Christine. We’re going to have questions in just a few minutes, but first, Chad, would love to get your opportunity to respond to Professor Chabot’s observations.

Chad Squitieri (46:37):
Yeah, absolutely. Thank you very much for those comments. Those were incredibly helpful. I’ll just respond with a few points.

The first is, and I don’t think saying this, I just want to clarify for the audience, I don’t argue to go straight to history. I argue to look at text and then let history inform that. So I wrote this actually before Bruen and the Second Amendment case came down. I think the analysis is similar to that. First look at the text and then let history to the extent that it’s available and form that decision. But really courts are just be interpreting necessary proper as you relate to a particular power, just like courts interpret what is speech, what is a seizure, what is a search?

And as far as judicial capabilities of handling history, I do think that judges are better equipped to engage with history than they are say just free floating philosophical questions like Montesquieu might think about what is a legislative power and how does it differ?

I’m less comfortable with courts acting as philosopher kings. I’d rather them interact with history because in a sense, and I might get anger emails or something from history PhDs, but essentially law is a form of history. Humans for thousands of years have been telling each other stories and drawing lessons from that stories. And I think the law is in continuing that tradition and I think judges can handle it.

As far as when to look, I certainly for Necessary and Proper Clause refer to 1788, particularly I think June 21st, 1788 at 1:00 PM when the ninth State New Hampshire ratified the constitution.

But for other powers, for example, the various amendments, those were ratified at different times. So you would look at the time that the constitutional phrase in question was ratified. That’s when you look.

And finally, as to maybe clumping things together, I do perhaps think it might turn into a situation where… For example, Mike Rappaport has a two-tiered analysis to non-delegation. Maybe at the end of the day, if you apply my approach, we’ll see that they clump in two or three or four tiers, but I’d rather go through the analysis first and then see how it comes up rather than picking a number ahead of time.

But just again, thank you so much for the comments. I really appreciate it.

Trevor McFadden (48:54):
All right. Questions Professor Barnett.

Randy Barnett (48:58):
Yeah, very interesting paper and cases. I’m very sympathetic. Does history put on its weight on Necessary and Proper Clause in order to apply these different powers. Does your paper adopt any particular perception of the Necessary and Proper Clause, either necessary or proper order… [inaudible 00:49:17]

Chad Squitieri (49:17):

Speaker 7 (49:17):

Chad Squitieri (49:19):
So I cite you when I talk about it, but I essentially say for the purpose of the paper, I just adopt a Marshall’s understanding and then I say maybe what’s like into it and see it’ll be different. So the analysis will change on exactly how we end up interpreting necessary proper. But for the current paper I just say, “Okay, assume Marshall’s right. Let’s apply it and see what happens.

Randy Barnett (49:43):
So are you interpreting Marshall as having this redacted convenience as… [inaudible 00:49:50]

Chad Squitieri (49:52):
I think I would argue, and tell me if I’m wrong, but your theory in that it’s somewhere in between the purely and dispensable and the convenience. So somewhere in the middle.

Speaker 7 (50:01):
I think Madison and Hamilton both in the middle.

Chad Squitieri (50:06):
But certainly they now course change potentially dramatically if Necessary and Proper leans one way or the other.

Trevor McFadden (50:15):

Speaker 7 (50:15):
Yeah. First of all, thank you. Fascinating. You reference history and how interpret is difficult undertaking to interpret exactly what the founders meant by the different [inaudible 00:50:27] in the Constitution, how we can extend it. [inaudible 00:50:29] So where would you draw a line? How far back in history can you cite? And then how far after the Constitution, if at all, can you build your cases and try to inform your understanding of their tack was? Do you look at papers or just your notes…[inaudible 00:50:44]

Chad Squitieri (50:47):
So you certainly look at all types of evidence, including cases. For me, I’ll answer for myself.

So if we’re looking at June 21st, 1788, the closer we get on either direction of the X axis time, the better, the stronger the evidence is.

Now, you have to interact with things such as Alien and Sedition Act just because early congresses did something doesn’t necessarily mean it’s constitutional. So I’m not saying it’s as positives evidence, but look at all types of executive actions, judicial writings, and of course, statutes as well and ratifying conferences.

But the closer you get to the time that the law became ratified is, in my opinion, stronger evidence.

Speaker 7 (51:30):
Okay. Do you ever [inaudible 00:51:33] evidence more heavily if it was written by a certain person, say Madison or Hamilton?

Chad Squitieri (51:38):
I try to resist the urge to do that. Madison has a great line in the post road debates that supports the non-delegation principle. I try to treat him as a nice representative from Orange, Virginia rather than the father of Constitution, but it’s hard to not.

Speaker 7 (51:55):
[inaudible 00:51:58]

Christine Chabot (51:58):
Oh, sure. So like the Supreme Court, I think you should put a lot of weight on the first congress’s understandings and understandings are often captured in debates. There’s the Annals of Congress, there are further debates that are recorded in the documentary history of the first federal Congress. So those were recorded by various reporters with varying degrees of accuracy. Everyone is known at the time for drinking a lot because there wasn’t reliable water. But when I read them, I don’t think that people were, they had a pretty good tolerance probably. So you’re looking at best available evidence. And then I think also statutes, if you look at what was enacted, I think that is probably reflected light at some level too, because there was a big concern reflected by Madison and others about making sure that the original statutes set forth were consistent with the Constitution.

They thought about those issues they debated, and I think they really tried to get the answer right, so I think those are all valuable sources, not infallible sources, but valuable sources that should be considered when looking to what the original understanding of the Constitution was.

Pre-ratification history text should also be taken into account. But I think often those sources are indeterminate. I’m an empiricist, so I think you should look at as much information as possible, and probably a gap in the literature has often been to omit or gloss over post-ratification materials, and I think people should pay careful attention to those as well.

Trevor McFadden (53:36):
I have a question for both of you. I guess picking up on Professor Barnett’s question on Necessary and Proper Clause, I think you’ve alluded to this, but you suggest when we’re looking at the amendments, we actually need to do a little time travel. For instance, on the 16th Amendment, Income Tax Amendment, you say the key non-delegation question would be whether an objective reader in 1788 would’ve understood a particular delegation to be a Necessary and Proper means of, quote unquote, carrying into execution the taxing power vested in Congress by the 16th Amendment as that power was understood by an objective reader in 1913.

I’ve got to admit, as a trial judge, I got little heart palpitations. [inaudible 00:54:26]

Chad Squitieri (54:26):
Boxes could help. [inaudible 00:54:27]

Trevor McFadden (54:26):
Oh my goodness, this is going to be tough.

Just completely recognizing that you haven’t tried to do the historical research in all these, but A, what value add is there with the second, or maybe the first jump looking at 1788 and then going to 1913? I’d be interested if either of you think that will actually make a difference for any of these, and how would we go through that mind bending exercise?

Chad Squitieri (55:06):
Well, I’m glad you made it at least that far through the paper. I worry I lose a lot of readers at that point.

So essentially, what I’m trying to get at is we need to understand what the taxing power meant when it was ratified, so I’m trying to capture that and capture what Necessary and Proper means carrying into execution. So it’s like carrying into execution X. How do we define X? Well on the 16th Amendment we had to look at in 1913 to do it.

You mentioned Nick Parillo’s paper. I actually started writing this thinking, “Huh, I bet you there was different levels of administrative state when the 16th Amendment taxing power came as compared to the Article one, Section eight power came.” That’s how I started writing it, and then Parillo’s paper came out and I changed it up a little bit.

I’ll give hopefully some good hope for this type of test, which is that I think the very complicated part comes in with the appropriate legislation amendments. I believe the reconstruction amendments are some of them. It’s because Congress is vested with a very awkwardly worded power.

So in the 13th Amendment, Congress is invested the power to eradicate slavery. The 13th Amendment just says there is no more slavery, and the specific power that’s vested in Congress is the power to enforce that prohibition through appropriate legislation. That’s a weird power. The power was to force this thing through appropriate legislation.

There’s scholarly work to suggest that appropriate legislation was intended to capture Necessary and Proper in 1788. But the also city of Bernie, where the court was kind of doing something funny with that analysis, so who knows?

But I think if that appropriate legislation means the same thing as necessary and proper, then the time travel thing can collapse into almost a single analysis. I just didn’t do all the historical analysis for all the powers yet, so I didn’t want to assume that yet. Yeah.

Trevor McFadden (57:00):
Do you have an instinct in that, Christine?

Christine Chabot (57:02):
I think it would be important to be comprehensive. So think about Necessary and Proper originally, and then also think why did they also say appropriate legislation as well, and have a good understanding of what that added. And it may be that it was intended to refer back and be similar, but you should look comprehensively to understand original meaning and also meaning in light of the timeframe of whatever amendment you’re considering as well.

Trevor McFadden (57:34):
All right. I see food and drink in the background here. You all can probably smell it even if you can’t see it. So if there are no further questions, please join me in thanking both the professors for the fascinating discussion.

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