Eli Nachmany (Harvard Law School) has posted The Irrelevance of the Northwest Ordinance Example to the Debate About Originalism and the Nondelegation Doctrine (2022 University of Illinois Law Review Online 17 (Feb. 25, 2022)) on SSRN. Here is the abstract:
With the Supreme Court’s recent opinions in the vaccine-or-test mandate cases, the nondelegation doctrine is back in the news. The nondelegation principle is the rule that “Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested.” Although the Court has not rigorously applied this doctrine in recent years, a fiery dissent from Justice Gorsuch in a 2019 Supreme Court case has signaled a possible revival.
The idea of the nondelegation doctrine’s return has sparked much scholarly interest, igniting a debate about whether Justice Gorsuch is correct that the original meaning of the Vesting Clause of Article I of the Constitution embodied the nondelegation principle. Professors Julian Mortenson and Nicholas Bagley published a thoughtful, provocative article in the Columbia Law Review arguing that the Constitution was not originally understood to contain a nondelegation doctrine. Professor Ilan Wurman penned a powerful response in the Yale Law Journal, taking the opposite view. This essay argues that one of the core examples of “delegation at the founding” that Professors Mortenson and Bagley enthusiastically cite -- the Northwest Ordinance -- is inapposite to the nondelegation debate.
Well argued and recommended.
