The Lost History of Delegation at the Founding

The new Supreme Court is poised to bring the administrative state to a grinding halt. Five Justices have endorsed Justice Gorsuch’s dissent in Gundy v. United States—an opinion that threatens to invalidate countless regulatory statutes in which Congress has delegated significant policymaking authority to the Executive Branch. Justice Gorsuch claimed that the “text and history” of the Constitution required the Court to replace a longstanding constitutional doctrine that permits broad delegations with a more restrictive one. But the supposedly originalist arguments advanced by Justice Gorsuch and like-minded scholars run counter to the understandings of delegation that prevailed in the Founding Era. This Article brings to light previously overlooked historical evidence of debates over the constitutionality of delegation in the First Congress, as well as an in-depth analysis of important policy decisions that the First Congress subsequently delegated to the Executive Branch. It shows that Alexander Hamilton, James Madison, and the First Congress all approved of legislation that delegated some of our nation’s most consequential policy decisions to the Executive Branch. Delegation was the First Congress’s solution to what was arguably the greatest problem facing our fledgling Republic: a potentially insurmountable national debt. Alexander Hamilton proposed a debt restructuring plan that would delegate Congress’s Article I, Section 8 power to “borrow Money,” and James Madison and other members of the First Congress debated this delegation before concluding that it was constitutional. The resulting legislation delegated decisions regarding borrowing and payment policies of the utmost importance to the national economy to President Washington and executive officers serving on the Sinking Fund Commission. Delegation was also the First Congress’s solution to a protracted dispute over national patent rights to revolutionary steam power technology. Although the Intellectual Property Clause empowered Congress to resolve inventors’ competing petitions for exclusive patent rights, the First Congress declined to do so and instead passed a barebones patent act that required executive officers to determine fundamental legal parameters for granting patents. The first U.S. debt and patent laws implicated some of the most significant policy questions facing our nation, and Hamilton, Madison, and the First Congress never understood the Constitution to prohibit Congress from delegating these questions. The doctrine recognized in the Founding Era provides no reason for the Court to overhaul Congress’s constitutionally prescribed role or set aside over eighty years of precedent