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Advisory Opinions

The Nondelegation Rumble

Advisory Opinions

The Dispatch

News, Government, Politics

4.74K Ratings

🗓️ 22 February 2021

⏱️ 58 minutes

🧾️ Download transcript

Summary

Originalists have recently come under fire for trying to reinvigorate an old principle in administrative law called the nondelegation doctrine, which holds that Congress cannot delegate its own legislative power to other entities. Are originalists correct in claiming that the nondelegation doctrine was present at the founding? What does the historical record have to say about it? Why should living constitutionalists even care about this debate? Nicholas Bagley, a law professor at the University of Michigan, and Ilan Wurman, an associate professor at the Sandra Day O'Connor College of Law at Arizona State University, join the show to answer all of these questions and more. Show Notes: -“There’s No Historical Justification for One of the Most Dangerous Ideas in American Law” by Nicholas Bagley and Julian Davis Mortenson in the Atlantic. -“Delegation at the Founding” by Nicholas Bagley and Julian Davis Mortenson in Columbia Law Review. -“No Nondelegation at the Founding? Not so fast,” by Ilan Wurman in the Yale Law Journal. -Schechter Poultry Corp. v. United States. -Above the Law. -The Second Founding: An Introduction to the Fourteenth Amendment by Ilan Wurman. Learn more about your ad choices. Visit megaphone.fm/adchoices

Transcript

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0:00.0

You ready?

0:02.0

I was born ready.

0:04.0

Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger and

0:24.4

Wow. That's all I'm saying Sarah. Wow. We just recorded a debate on the

0:30.3

non-delegation doctrine that you're going to hear in just a few minutes between Nick

0:35.7

Bagley and Elon Wormen, Nick Bagley, University of Michigan, Elon Wormen, Arizona State University.

0:42.4

That was really something else. And I have to say I'm so glad we did it because I don't know

0:48.9

about you Sarah, but I got a lot of messages from people saying how much they enjoyed the

0:54.0

non-delegation discussion and our last podcast. So now we have two of the leading scholars

0:58.8

in the country on the issue debating. As I say in a minute, they're the Oli and Foreman

1:05.2

of non-delegation doctrine in its fantastic.

1:08.8

Yeah, and look, both of these guys have so much. So if you enjoy the debate,

1:12.6

check out the other stuff they've written. So I don't mention this in the debate, but Elon,

1:16.8

for instance, has this great book called The Second Founding and Introduction to the 14th

1:21.2

Amendment that has just come out. It is not a pop legal book. It's an actual legal book. It's not

1:29.2

a law textbook either. So if you're interested in privileges and immunities clause substantive,

1:34.1

due process, these guys are not just non-delegation people. So highly, I just think they're both so great,

1:43.2

really, really enjoy both of their legal thoughts and writings.

1:46.5

And so in addition to that, we're going to just briefly cover some stuff that we're actually

1:51.5

going to kind of put a pin in it because there's a lot of interesting stuff happening that matters

1:56.0

in people's lives and matters in politics. So just right off the top of the top, we've got a

2:02.0

couple of interesting scotus grants and scotus denials. One is, scotus has taken up the challenge

...

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