In the past two years, there has been a surge of scholarship that challenged and supported the historic pedigrees of the Nondelegation Doctrine. A number of important articles have been written that question the validity of founding era knowledge and practice regarding the delegation of legislative power from the executive to this branch. Additional recent work on the subject is available by Jed Shugerman (Michael McConnell)
Nicholas Parillo’s Nondelegation Doctrine is one of the biggest challenges to originalist accounts. Yale Law Journalarticle “A critical assessment of the Originalist case against administrative regulating power: new evidence from the Federal Taxon Private Real Estate in 1790s” A new response has been drawn to this paper.
Ann Woolhandler, in her article “Public Rights and Taxation. A Brief Reply to Professor Parrillo”, questions whether Parillo’s article does not undermine originalist claims that there is a doctrine of nondelegation. This is the summary:
It is possible to see a division between researchers who say Congress granted limited delegations in the early Republic to executive officials and scholars who have seen more expansive delegations. Nicholas Parrillo, in A Critical Assessment Of the Originalist Case Against Administrative Regulatory Power. New Evidence From the Federal Tax on Private Real Estate. The 1790s. Professor Nicholas Parrillo argues that Congress’s delegations to executive officials under the direct tax 1798 overruled arguments that earlier delegations of rulemaking tended to be limited or unimportant. Parrillo was responded to by Professor Ilan Wurman, a nondelegation scholar. He argued that Congress addressed important questions regarding the tax of 1798. Instead, this paper focuses on Parrillo’s assertion that the 1798 taxes did not fit within any restricted special category for nondelegation purposes. Parrillo’s evidence is admittedly inconsistent with some assertions that the early rules were not coercive nor domestic. However, taxation falls under the umbrella of “public rights”, which can include domestic and coercive matters, that nonetheless allowed for more permissive application of separation-of-powers strictures.
Woolhandler’s comment highlights one thing: Modern characterizations about the importance, scope and nature of certain delegations may differ from those made in the founding period. Modern commentators might find it difficult to understand the 1787 prevailing categories or characterizations. However, the Constitution’s original meaning does not allow for the delegation of legislative power. Therefore the understandings and characterizations of founding-era people would be much more significant than the ones of today.