Originalism’s Still Around, No Matter What Adrian Vermeule Says
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I was taken aback when I read Adrian Vermeule’s recent Washington Post op-ed, which alleges that the U.S. Supreme Court’s West Virginia v. Environmental Protection Agency decision is unprincipled, results-oriented, and bereft of jurisprudential method. Indeed, when Professor Vermeule insists that the decision cannot be reconciled with originalism, he argues that “There is no conservative legal movement”—largely to defend his theory that the opinion’s use of the major questions doctrine and the nondelegation doctrine represent a wholesale abandonment of originalist principles. In particular, Vermeule argues that “the originalist credentials of the nondelegation doctrine are shockingly thin”—alleging that the nondelegation doctrine’s relatively recent emergence makes it incompatible with originalism. Similarly, Vermeule charges that the major questions doctrine (which rests on the nondelegation doctrine) is without grounding in any “venerable maxim or principle of our law; one will search for it in vain in the pages of Blackstone.”
Vermeule’s claims are groundless. An examination of legal history demonstrates that the nondelegation doctrine—and its legal offspring, the major questions doctrine—is deeply rooted in the history of American and English law.
The nondelegation doctrine emerged from English common law before the United States ever existed. What we think of as the English Constitution was a set of unwritten norms that developed over centuries. That Constitution was a set of common understandings that were, in part, developed by a system of governance that made it possible to learn from mistakes: more precisely, those understandings were informed in part by carrying out a terrible misstep of governance, seeing its horrible consequences, and then proclaiming that we must never make such a mistake again.
The incident that triggered the creation of the nondelegation doctrine was the Proclamation by the Crown Act of 1539. Enacted under the theory of the “Divine Right of Kings,” that act in effect abolished England’s separation of powers by delegating to the King the power to make laws as “though they were made by act of parliament.” This act put the legislative power—the power to create statutes—in the hands of the executive. The act proved so controversial that it was repealed in 1547. But that incident planted the seeds for the emergence of the principle of separation of powers that the United States’ founders enacted in the Constitution.
John Locke, whose theory of government pervaded American legal and constitutional thought, was likely conscious of the Proclamation’s Act failure. In the Second Treatise of Civil Government, he wrote:
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 when the people have said, We will submit to rules, and be govern’d by laws made by such men, and in such forms, no body else can say other men shall make laws for them; nor can the people be bound by any laws but such as are enacted by those, whom they have chosen, and authorised to make Laws for them. The power of the legislative being derived from the people by a positive voluntary grant and institution, can be no other, than what the positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws, and place it in other hands.
Similarly—and in sharp contrast to Vermeule’s claims—the reader will find the embryonic form of the nondelegation doctrine discussed by Blackstone in his Commentaries on the Laws of England, Volume 1, at page *271:
[T]he vesting of either of which [powers] in any single person the laws England are absolute strangers. Indeed by the statute of 3 Hen. VIII c. 8 [the legal citation for the Proclamation by the Crown Act of 1539] it was enacted that the kings proclamations have the force of acts of parliament; a statute which was calculated to introduce the most despotic tyranny, and which must have proved fatal to the liberties of this kingdom, had it not been luckily repealed… .
Notably, Blackstone uses the word “vesting” here. It’s no coincidence that the very first line of the Constitution rests on the same word and the same concept: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” The term is critical because it imports the law of agency into the Constitution.
This is far from the only originalist basis for applying the common law of agency to elected officials. James Wilson, at the Constitutional Convention, described members of the legislature as the “agents” of the people. One of the first Supreme Court Justices, James Iredell, at the North Carolina ratification debates, said the Constitution “may be considered a great power of attorney”— which, of course, is the classic agency relationship. The Rhode Island ratification convention held “[t]hat all power is naturally vested in, and consequently derived from the people; that [government officers] therefore are their trustees, and agents, and at all times amenable to them.” (There is that word “vested” again!) The Federalist Papers #46 referred to the federal government as “agents and trustees of the people,” and in #65 the President as the “principal agent.”
The common law of agency prohibits subdelegation. See 1 Matthew Bacon, A New Abridgment of the Law 320 (1768); see also 2 Commentaries on American Law 633 (1827). Justice Story described that prohibition like this:
One, who has a bare power or authority from another to do an act, must execute it himself, and cannot delegate his authority to another; for this being a trust or confidence reposed in him personally, it cannot be assigned to a stranger, whose ability and integrity might not be known to the principal, or, if known, might not be selected by him for such a purpose. . . . The reason is plain; for, in each of these cases, there is an exclusive personal trust and confidence reposed in the particular party. And hence is derived the maxim of the common law; Delegata potestas non potest delegari [Delegated power may not be delegated].
This citation rests uneasily with Vermeule’s claim that “This is no venerable maxim or principle of our law.” The venerable principle or maxim in operation here is that delegated power may not be delegated. The source of all sovereign authority in the United States is the people; they have delegated their power to Congress; and such delegated power cannot be re-delegated into any other hands.
This legal principle was not confined to the federal level: one only needs to read the various State Supreme Court decisions on the subject during the Founding era. See, e.g., Marr v. Enloe, 9 Tenn. (1 Yer.) 452, 453 (1830); People ex rel. Caldwell v. Reynolds, 10 Ill. (5 Gilm.) 1, 11 (1848); State v. Field, 17 Mo. 529, 533 (1853) (describing the prudence and wisdom required of legislators as prohibiting subdelegation); Moore v. Allen, 30 Ky. (7 J.J. Marsh.) 651, 652 (1832) (describing a “personal trust” that could not be subdelegated). Many of these cases explicitly referred to the Latin maxim cited by Justice Story above—“Delegata potestas non potest delegari.” See, e.g., Parker v. Commonwealth, 6 Pa. 507, 515 (1847); Franklin Bridge Co. v. Wood, 14 Ga. 80, 83 (1853). To quote just one judge’s opinion:
A legislator “he takes it with all its duties and responsibilities; and, as a true and faithful agent, he cannot shrink from meeting and discharging them. And, above all, he cannot delegate to others the trust which has been expressly confided to him, by reason of his supposed knowledge and sound judgment. Delegata potestas, non potest delegati, is a settled maxim of the common law, in full force at the present day; and never more applicable than to the case of a legislator.
Thorne v. Cramer, 15 Barb. 112, 116 (N.Y. Gen. Term 1851).
At the federal level, the first legislative debate concerning the nondelegation doctrine occurred in 1798 in the First Congress. The House of Representatives was considering a bill to delegate to the President the power to raise an army “whenever he shall judge the public safety shall require.” 8 Annals of Cong. 1631 (Joseph Gales, ed. 1798). As Rep. Richard Brent described it:
Congress, then, in whom alone the Constitution has placed the power of raising armies, will be deprived, during that time, of that power. And if Congress have the power of divesting themselves of this right, and transferring it for six years, they may do it for ten years or for a term equal to the existence of the Constitution . . .
No person has said Congress could not authorize the President to raise an army for the defence of the country; but it was denied that the power could be transferred from Congress to him, to determine whether it should or should not be raised.
Id. at 1638-9. As described by Rep. Gallatin:
The object of the Constitution was to assign forever certain specific Legislative powers to Congress, and certain other powers to the Executive, and whenever one department shall exercise the powers of the other, in whatever way it shall be done, the Constitution will be broken, and the security intended by it will no longer exist.
Congress decided that it could not delegate to the President the power to decide to raise an army whenever he thought it best. Instead, Congress had to specify “certain contingencies.” As described by Rep. Otis, “Wherever absolute power was invested, there could be no doubt [that it was unconstitutional] but that power might be executed upon a condition.” Id. at 1641. Congress therefore specified those contingencies: it set out when the executive can act, and the executive can examine the factual circumstances that exist, so that what Congress specified is triggered.
The nondelegation doctrine has a long history in the Supreme Court as well, starting with the venerable Chief Justice John Marshall in Wayman v. Southard (1825). He wrote that “It will not be contended that Congress can delegate to the courts or to any other tribunals powers which are strictly and exclusively legislative.” Another passage in that opinion to this day still defines the nondelegation doctrine and the major questions doctrine:
The line has not been exactly drawn which separates those important subjects which must be entirely regulated by the legislature itself from those of less interest in which a general provision may be made and power given to those who are to act under such general provisions to fill up the details.
Chief Justice Marshall described the concepts at issue as “important subjects” rather than “major questions.” Marshall might as well have labeled the major questions doctrine the “important subjects doctrine”—but the name doesn’t matter, the substance does.
Vermeule’s claim—“Careful scholarship has confirmed the thesis that the nondelegation doctrine was essentially nonexistent during the founding era”—is deceptive: Vermeule’s theory ignores the work of the many scholars who have falsified his claim. See, e.g., Philip Hamburger, Nondelegation Blues (2022); Philip Hamburger, Delegating or Divesting?, 115 Nw. L. Rev. Online 88 (2020); Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. 1490 (2021); Richard A. Epstein, Delegation of Powers: A Historical and Functional Analysis, 24 Chap. L. Rev. 659 (2020); Chad Squitieri, Towards Nondelegation Doctrines, 86 Mo. L. Rev. (forthcoming 2022); Gary Lawson, Mr. Gorsuch, Meet Mr. Marshall: A Private-Law Framework for the Public-Law Puzzle of Subdelegation, Boston U. Sch. of L. Pub. L. & Legal Theory Paper No. 20-16 (2020); Peter J. Wallison, An Empty Attack on the Nondelegation Doctrine (Apr. 22, 2021), John Kerkhoff, Sources & Subdelegation, J. Reg. Blog (Feb. 14, 2022); Jennifer Mascott, Early Customs Laws and Delegation, 87 Geo. Wash. L. Rev. 1388 (2019), among others.
Vermeule claims the nondelegation doctrine has only been used twice in Supreme Court history, and that this modern pedigree is incompatible with originalism. Such claims miss something important: the nondelegation and major questions doctrines don’t generally operate by invalidating statutes. Instead, these doctrines usually operate as methods of interpretation or construction: just as in West Virginia v. Environmental Protection Agency, statutes are construed narrowly so as to avoid a constitutional problem. No statute was invalidated in West Virginia v. Environmental Protection Agency, but it appears inarguable that it was a consequential decision.
The Vesting Clauses, as alluded to in Blackstone and the Rhode Island ratification convention, are the textual foundation of the doctrine. This doctrine was accepted by the very first Congress, Chief Justice John Marshall, and Justice Story. The same common-law agency doctrines were regularly applied by state supreme courts to state legislatures. How much more meat on the bones is needed to qualify as originalist? The legal historian will search in vain for any statement from the Supreme Court proclaiming that the doctrine isn’t valid; it has been applied since the First Congress to today. Of course it is fair to argue about where and when it applies—and, indeed, it is fair to argue that there may have been historical episodes in which it was not applied correctly—but for Vermeule to allege that the doctrine is without existence, or without content, or without precedential force is not really defensible.
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