The Misuse of History to Undercut the Modern Regulatory State

Daniel Farber

Feb. 3, 2022

This op-ed was originally published by The Regulatory Review. Reprinted with permission.

In recent decades, the U.S. Supreme Court has become increasingly interventionist on issues relating to the appointment and removal of officials. Nondelegation arguments have also escalated and even non-constitutional doctrines such as Chevron are debated in constitutional terms. But according to originalist scholars, who say that the Constitution should be understood based on its meaning at the time of drafting, these are necessary developments.

Although I am not an originalist, I had assumed that the originalist case must be a powerful one to justify such a forceful effort to overturn existing precedent. That turns out to have been a mistake on my part. Writing a book on presidential power led me to take a much closer look at the historical record and the recent scholarship on these questions. The work of scholars such as Nicholas Bagley, Daniel Birk, Julian Mortensen, Nicolas Parrillo, and Jed Shugerman, as well as that of their critics, have made me realize that originalist arguments for presidential appointments and removal power and nondelegation positions are not only debatable, but in some cases really shaky.

The current Court has fervently embraced Chief Justice Taft's argument that the President has unlimited power to remove government officials. Yet the Court has yet to come to grips with the evidence on the other side. Like Taft, the Court clings to the so-called Decision of 1789, which led to a statutory provision for the replacement of the Secretary of State after removal by the President.

But a careful look at the legislative history behind that provision offers little reason for confidence that there was a consensus on the constitutional argument for the President's removal power. Moreover, the very fact that there was a heated debate on the subject undercuts the idea that the Constitution's text had a clear meaning to well-informed readers of the era. So, for that matter, does the fact that Hamilton took a very different view in The Federalist Papers—especially notable since Hamilton was famously enamored of presidential power.

This lack of clarity during the founding of the United States is perhaps understandable given that even the British King did not have unrestricted removal powers, and the British Parliament freely specified terms of office legislatively. Perhaps an unlimited removal power is found in the best reading of the Constitution, but, if so, it is not because there was a clear understanding in 1789 that is now binding on us.

The revival of the nondelegation doctrine is another example of the limits of originalism. Here, too, the evidence directly bearing on the delegation issue turns out to be ambiguous at best.

Perhaps there was some shared understanding that limited the ability of Congress to delegate regulatory authority. If so, the limits seem to have been extremely wide. Before and after the ratification of the Constitution, Congress made some remarkably open-ended delegations of power. One striking example was legislation that authorized territorial governors and legislatures to pass essentially whatever laws they thought appropriate. Congress also gave the President a blank check in regulating commerce with Indian tribes, and it provided a very loose public-interest standard for issuing patents.

Most tellingly, Congress gave tax commissioners very broad powers to readjust certain tax levels. Some representatives made arguments about excessive delegation, but there is little evidence that this view was broadly shared. The best evidence for the anti-delegation doctrine was the debate on a measure to establish postal roads. Congress's decision to specify the initial routes is a weak foundation for an assault on the current regulatory state, especially because Congress gave the executive branch carte blanche over extensions of the system.

If the term "original understanding" is meant to refer to a broadly shared understanding of the Constitution's text at the time it was adopted, the evidence for such understandings of the removal power or limits on delegation seems weak. Of course, one might argue that certain views on constitutional issues were logically correct then and now, but the idea of originalism seems to be doing little work in such arguments.

There may well be other arguments for plenary presidential removal power or stringent limits on delegation. If so, the Court ought to make them.

In the removal power cases, the majority has maintained that completely centralizing power in the president protects liberty because the president is democratically accountable. The Court has not directly argued that; instead, it claims that the framers did so. If the Court took responsibility for that argument, it would also have to consider obvious rejoinders: that centralized power itself can pose threats of abuse, that second-term presidents are in no way accountable to the electorate, and that other values such as expertise and impartiality should also be part of the balance.

So long as the Court can pawn its own views off on the framers, it gets the advantage of making policy arguments without having to take responsibility for them. Nor does it have to confront the question of whether unelected judges are actually best positioned to make such judgments.

Although some recent scholars would take issue with this, I am willing to assume that the positions championed by members of the current majority on the Court were within the range of reasonable understandings of ambiguous provisions that were available in the founding era, even if there was no consensus about them. Accordingly, the Court's positions may not be completely ruled out of contention on originalist grounds.

Still, a fair reading of the historical record does not dictate the positions certain justices are taking today. It can only cloud debate to pretend otherwise and to obfuscate the responsibility of the justices for the choices they are making.

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