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Boston University School of Law




In the wake of Gundy v. United States, 139 S.Ct. 2116 (2019), there is reason to think that five Justices might be willing to consider reviving the constitutional non-subdelegation doctrine. But in what form? Judges and scholars have labored for more than two centuries to come up with a legally rigorous standard for evaluating the permissible scope and breadth of congressional grants of discretion to executive and judicial agents. Some, such as Justice Scalia, eventually gave up in despair. That is a grave mistake. Lawyers had faced subdelegation questions for centuries before the Constitution was ratified, in the context of private-law agency arrangements. There are good reasons to think that the Constitution draws on private-law background norms for much of its meaning, and the subdelegation problem is an excellent candidate for elaboration in private-law terms. Thus, when Chief Justice John Marshall in 1825 drew a distinction between impermissible grants of discretion on “important subjects” and permissible grants of discretion on matters of “less interest,” his approach was far more structured, grounded in precedent , and law-like than may appear at first glance. It drew on principles and case law developed in settings ranging from powers of appointment in wills, in which the holder of the power tries to designate another person to exercise it, to the lack of privity between merchants and subdelegees in the absence of express authority on the part of the agents to subdelegate power, to the lack of authority of factors and supercargoes to entrust sale of goods to subagents without the express consent of their principals. Thus, judges worried about the open-ended character of a non-subdelegation doctrine need not run away from Chief Justice Marshall’s classic formulation. They simply need to flesh out its private-law background. There was abundant law regarding subdelegation in the eighteenth and nineteenth centuries, and the Constitution’s subdelegation principle is grounded in that law.


Forthcoming publication in American Enterprise Institute

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