In their important paper on nondelegation, Professors Julian Davis Mortenson and Nicholas Bagley take to task those who use thinly sourced arguments to support the nondelegation doctrine. They put it bluntly: “It should go without saying that sweeping assertions about widely shared (let alone undisputed) understandings should not rest on such scanty source material.” (p. 297).[1]

I agree. But such a rule should apply across the board. That includes their own work—and particularly to the sweeping assertion that the Founders explicitly embraced subdelegation of legislative powers to other branches. Yet it turns out that for this claim, they cite just one lecture from one founder, and the lecture does not even say what Mortenson and Bagley suggest it does.[2]

Last month, Professor Mortenson doubled down on this position—with the same citation—in an amicus brief to the Supreme Court in a case about an agency’s delegated powers. To my mind, the case doesn’t present much of a nondelegation issue, but lots of people think otherwise, so the case has drawn attention from all corners of the nondelegation world. Professor Mortenson is a towering figure in executive power theory (and on Twitter). Which means when he writes about things like nondelegation, others pay attention.

To my concern with the brief.[3] It first points out that “the legislature’s authority had already been delegated by the people.” (Brief, p. 4). That’s certainly correct. “We the people,” as sovereign, delegated powers to the separate branches—including to Congress. But the brief then goes on to say that “the propriety of further subdelegation was taken for granted.” This goes to the heart of the brief’s claim: that there was no nondelegation doctrine at the Founding. In support of this crucial proposition, the brief cites to only one source: the lectures of James Wilson. Mortenson’s law review article invokes the same citation to argue that “legislative power could be redelegated just like any other.” (p. 299).

That is a strong claim. After all, some legal theorists (such as Gary Lawson and Guy Seidman) hinge nondelegation entirely on subdelegation.[4] So it is crucial to understand what Wilson said. Here is the passage, as quoted by Mortenson and Bagley in their paper:

Representation is the chain of communication between the people and those, to whom they have committed the important charge of exercising the delegated powers necessary for the administration of publick affairs. This chain may consist of one link, or of more links than one; but it should always be sufficiently strong and discernible. (p. 299)

This passage, standing alone, can certainly be read to support Mortenson’s claim. But a closer look shows that it has nothing whatsoever to do with subdelegation of legislative powers, let alone delegations to a separate branch.[5] The passage instead has to do with what historian Gordon Wood has explained was the new form of representation reflected in the American system of government: one in which the people for the first time were represented throughout all of government, not just the legislative branch. (Wood, Creation, at p. 596-603). As the context of Wilson’s lecture makes clear, he is talking about the chain of representation from the people to judges. Although the people have a direct link to the House of Representatives (and essentially a direct link to the President), the chain connecting them to judges has two links, with the intervening link being the President. Wilson is not bothered by the independence of judges because their chain to the people, although consisting of more than one link, is “sufficiently strong and discernable.” A similar chain connected the people to Senators, who (at the time) were selected by state legislators.

Wilson starts his lecture with a pre-1787 primer on representation. At the time, “the executive and judicial powers of government were placed neither in the people, nor in those, who professed to receive them under the authority of the people.” (I Wilson Lectures, p. 699). Only the legislature was “chosen by ourselves,” and legislators were “the guardians of our rights, the objects of our confidence, and the anchor of our political hopes.” Even after the Revolution, the people looked down at the executive and judicial branches. “The legislature was still discriminated by excessive partiality.” And people often thought “that the executive and judicial powers [were] not connected with the people by a relation so strong, or near, or dear,” as the relationship with the legislature.

But that all changed. Wilson argues that the Constitution—through popular sovereignty—ensured that the people were represented in all branches of government. “[I]t is high time,” he said, “that we should look upon the different parts of government with a just an impartial eye.” Indeed: “[t]he executive and judicial powers are now drawn from the same source”—the people—“and are now directed to the same ends, with the legislative authority.” Those in the executive and judicial branches were “as much the servants, and therefore as much the friends of the people as” the legislature. (p. 699-700).

So the Constitution resulted in an “extension of the theory and practice of representation through all the different departmentsof the state.” (p. 721). This was new, as Wilson makes clear: representation in all branches of government “[t]o the ancients . . . seem[s] to have been altogether unknown.” “The American States enjoy the glory and the happiness of diffusing this vital principle”—representation—“throughout all the different divisions and departments of the government.”

Even more starkly, Wilson says that this “principle of representation” in America “has never been attempted” in Great Britain. In fact, the Constitution flipped government on its head: “The order of things in Britain is exactly the reverse of the order of things in the United States. Here, the people are masters of the government; there the government is master of the people.” (p. 719).

The point is particularly important in relation to judges, which is the context of the Wilson quotation cited by Professor Mortenson. In England “[t]he judicial department . . . does not depend upon a representation of the people” because judges are picked by the crown. And since the King’s power came from a “contract” with the people—which “seems to exclude, rather than imply a delegated power” (p. 721)—Wilson did not consider the people “represented” by the King’s appointees.

How could it be that in America all branches are representative of the people? After all, judges are still not elected, and Senators, too, weren’t picked by the people under the original Constitution. Wilson is examining these questions—the nature of representation—when he brings up the “chain” with multiple “links” that Mortenson cites. In only sentences before, Wilson tells us that in America—unlike in England—all government power has been delegated by a sovereign people. Thus, although judges are appointed by the president as they had been appointed by the executive (the King) in England, they still represent the people in America because the executive is elected by the people and accountable to them. That is the “chain”that Wilson is talking about: The people are represented in the judicial department because a “chain . . . consist[ing] . . . of more links than one”—from judges, to the president (with advice and consent from the Senate), to the people—is “sufficiently strong and discernible.”

Here, again, is the full passage:

Representation is the chain of communication between the people and those, to whom they have committed the important charge of exercising the delegated powers necessary for the administration of publick affairs. This chain may consist of one link, or of more links than one; but it should always be sufficiently strong and discernible.

The quote simply has nothing to do with subdelegation of legislative power to a different branch. Wilson instead describes how the judicial branch represents the people—through a “chain of communication.” And this view fits neatly with the fact that 1787-style popular sovereignty meant that judges “were just another kind of servant or agent of the sovereign people.”(Wood, Power and Liberty p. 133). Placing sovereignty in the people had immense consequences. It meant that “judges were equally agents of the people alongside the legislators.” (p. 133). Naturally, some wondered why judges were not elected, but ultimately the people accepted that “all parts of the American government bec[a]m[e] in one way or another representatives of the people.” (p. 17). The branches “were just different kinds of representatives of the people.” (p. 95). As Wilson viewed things: an “excellency of this system” was that “all authority, of every kind is derived by representation from the people, and the democratic principle is carried into every part of the government.” (Wilson Convention Remarks, p. 238).

Wilson uses the same“chain” language in his other speeches and writings, too. In every instance it is clear that Wilson is talking about representation throughout the government. In his November 1787, speech to the Pennsylvania Ratifying Convention, Wilson explains that “representation of the people is not, even at this day, the sole principle of any government in Europe.” (p. 183). Great Britain, Wilson said, had the “best” representational system, but even in “the British constitution the principle of representation is confined.” He again highlights judges and the executive. “The judicial authority . . . does not depend upon representation even in the most remote degree” because “judges of Great Britain are appointed by the Crown.”Thus it “is not pretended” that “the executive power” in Great Britain is “founded on representation.” Then comes the familiar language:

For the American States were reserved the glory and the happiness of diffusing this vital principle throughout the constituent parts of government. Representation is the chain of communication between the people and those to whom they have committed the exercise of the powers of government. This chain may consist of one or more links’ but in all cases it should be sufficiently strong and discernable.

In yet another Lecture, Wilson boasts that the Constitution “rest[s] solely . . . on the great democratical principle of a representation of the people.” (II Wilson Lectures, p. 833). And this government-wide representation of the people was different: “government, founded solely on representation, made its first appearance on this, and not on the European side of the Atlantick.” But what is representation? He answers:

Representation is the chain of communication between the people and those, to whom they have committed the exercise of the powers of government. If the materials, which form this chain are sound and strong, it is unnecessary to be solicitous about the very high degree, to which they are polished. (p. 834).

Here, too, the “chain” Wilson references relates to the people and representation—not subdelegation of constitutional vested powers. A sentence later, Wilson confirms this, stating that the best way to ensure representation is to “invite and admit the freemen to the right of suffrage.”

And there’s more. In his 1787 New Year’s Eve speech, Wilson discusses the “foundations” of government which must “be broad, and strong, and deep.” (Wilson Address, p. 299). Then, back to his chorus: “Representation is the chain of communication between the people, and those to whom they have committed the exercise of the powers of government. If the materials, which form this chain, are sound and strong; I shall not be very anxious about the degree to which they are polished.” The best “chain of communication,” Wilson says again, is direct: “the rights of suffrage.” (p. 300). His refrain continues later in the speech, pointing out that until then, “the doctrine and exercise of authority by representation was confined, in Pennsylvania, as in England, to one branch of the great powers.” Now representation would permeate all branches of government. In short, as Wilson says elsewhere, “[w]hen you examine all . . . parts” of the American government, “they will invariably be found to preserve that essential mark of free governments—a chain of connection with the people.” (p. 279).

Mortenson and Bagley never cite these multiple other instances where Wilson uses the near-exact same “chain” language. Nor does the latest amicus brief.[6] Had the passages been examined, it might have been clearer what Wilson meant, and this quotation would not be the sole source of support that Professor Mortenson’s amicus brief cites for the proposition that the Founders supported subdelegation.

Mortenson and Bagley’s footnote to Wilson does not bolster their case. The authors say that Wilson’s lecture shows “why he agreed that ‘[w]hen the Parliament transferred legislative authority to Henry VIII, the act transferring could not in the strict acceptation of the term be called unconstitutional.’” (Mortenson and Bagley, p. 299 n.115). And they cite Wilson’s November 24, 1787, speech to the Pennsylvania Convention for the idea that a “transfer of legislative authority to Henry VIII . . . could not strictly speaking be termed unconstitutional.”

As Professor Ilan Wurman has pointed out, however, this is beside the point. Wilson said (correctly) that such actions in Great Britain were considered constitutional because the constitution was whatever Parliament “pleases,” but Wilson stressed repeatedly that the legislature in America would possess no such power. (p. 1528-29). Blackstonian Parliamentary sovereignty gave away to American-style popular sovereignty. So Congress was different because the American Constitution binds the legislature—unlike in Great Britain. The “legislative authority is . . . subjected to the control arising from the constitution.” (I Wilson Lectures, p. 742). Wilson explained the difference: “To control the power and conduct of the legislature by an overruling constitution was an improvement in the science and practice of government reserved to the American states.” (p. 191). And “limiting and superintending the operations of legislative authority, seems not to have been accurately understood in Britain.”

Wilson’s lectures and speeches confirm that Parliament’s authority went well beyond Congress’s. “The supreme power of the people is a doctrine unknown and unacknowledged in the British system of government,” where people accept the “omnipotent authority of parliament.” (p. 440-41). He repeats this ad nauseum: “In the United States . . . the legislative is very different from the supreme power” of the people. (p. 572). So “[i]nstead of being uncontrollable, the legislative authority is placed, as it ought to be, under just and strict control.” The American system simply did not incorporate Parliamentary practices. It rejected them. Wilson asks directly whether Blackstone’s view of legislative supremacy should “form a first principle in our system of municipal law?” He answered: “Certainly not. This definition is not calculated for the meridian of the United States.”(p. 557-58).

Wilson’s discussion of Henry VIII likely does not support Mortenson and Bagley’s point that Wilson believed subdelegations were constitutional. “Even Henry the eighth, tyrant as he was,” Wilson says, “knew that an act of parliament was necessary, if even that could be sufficient, to endow his proclamations with legal obligatory force.” (p. 561). Here, Wilson implies that a mere delegation from Parliament might not have been sufficient to make Henry VIII’s proclamations legal. Simply put, Wilson doesn’t favor Henry VIII having legislative power—he is against it. And even if Parliament transferred power to Henry VIII before legislative sovereignty took root in Great Britain, Wilson is crystal clear that no constitutional limit barred the transfer because “[t]he idea of a constitution, limiting and superintending the operations of legislative authority, seems not to have been accurately understood in Britain,” where there are “no traces of practice conformable to such a principle.” (p. 191)

No source that I could find suggests that Wilson believed that any branch could redelegate power it received from the people. This is not for lack of talking about delegation: Time and again Wilson mentions delegation, yet he never says that Congress could subdelegate power. The people hold all power which “may be delegated for a certain period, on certain conditions, under certain limitations, and to a certain number of persons.” (p. 557). But Wilson never once says that Congress can further delegate legislative power.

None of this is to say that Mortenson and Bagley are wrong overall. They point to numerous examples of early statutes that, at the very least, arguably delegate broad authority to the Executive. But did the Founders “explicitly affirm[]” an “understanding that legislative power could be redelegated just like any other?” And was “the propriety of further subdelegation . . . taken for granted?” Maybe. But no Founder expressed as much in the sources cited in Mortenson’s brief and in his paper. Certainly James Wilson, the only cited authority for the proposition that subdelegation was a given, provides no support.[7]

This may seem like a minor point, but sources matter. As Mortenson and Bagley themselves have said, when such “sweeping assertions” are made, those making the claims should have more than “scanty source material.”

John Kerkhoff is an attorney in the separation of powers practice group at Pacific Legal Foundation.

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[1] Professors Mortenson and Bagley deserve praise for their historical study, and I do not suggest shoddy sourcing. I simply read one differently. I once emailed the great historian Eric Foner about a potential error in his book on Reconstruction. After looking up the sources, I sent Professor Foner an email laying out my thoughts. To my surprise, he responded and agreed. And he said that the next edition would be corrected. Professor Foner’s grateful reply convinced me that scholars really care about getting things right.

[2] Nothing I say here should be read to impugn the good faith or rigorous study of Professors Mortenson and Bagley. In addition, I do not address the practice of early Congresses raised in Professor Mortenson’s paper and brief. I focus on a narrow claim: Whether Mortenson and Bagley have pointed to evidence that before and during ratification “[m]any Founders explicitly affirmed . . . that legislative power could be redelegated just like any other.” Mortenson and Bagley, supra Note 1 at 299.  

[3] Professor Mortenson graciously corresponded with me regarding this piece and topic. I am indebted to him for his comments and insight—and his willingness to respond to a non-scholar’s out-of-the-blue email.

[4] See Gary Lawson and Guy Seidman, A Great Power of Attorney: Understanding the Fiduciary Constitution 113-117 (2017); Phillip Hamburger, Delegating or Divesting? 115 Nw. U. L. Rev. Online 88 (2020). Note that Professor Hamburger’s piece addressed at least one of the Wilson citations by Mortenson and claims it “addresses the English constitution in the sixteenth century and actually suggests criticism of legislative delegation.” Id. at 92. But Hamburger does not address the points I raise here. Professor Ilan Wurman has also raised issues with the Mortenson and Bagley use of Wilson, pointing out that although Wilson did not believe that the Statute of Proclamations would be “unconstitutional under the British constitution,” he “implied that it would be unconstitutional under the American constitution.” Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. 1490, 1528-29 (2021). Wurman, too, however does not go into great depth, and he also does not address the claim about subdelegation. And given that Mortenson filed his recent amicus brief with the citation to Wilson for subdelegation, it appears Professor Mortenson continues to believe his citation is correct.

[5] At least one other writer has recognized the error. See Aaron Gordon Nondelegation Misinformation: A Rebuttal to ‘Delegation at the Founding’ and its Progeny, (April 30, 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3561062, at 17-18 n.101. Gordon points out that Mortenson and Bagley misunderstand Wilson, and that the “chain” refers to representation not re-delegation. However, Gordon deals with this quickly, in a footnote, without looking at Wilson’s remarks elsewhere as I do here. And since Mortenson has again made this claim in his amicus brief, it’s worth addressing in more detail.

[6] I don’t mean to say that Wilson is necessarily correct in his claims. Or that this accurately reflected political theory at the time. Or that Wilson wasn’t just wrong. Maybe, maybe not. The point here is solely that Wilson does not support the claim that the Founders widely accepted subdelegation of legislative powers.

[7] Again: the extensive post-ratification practice from Congress may support the subdelegation claim. I leave that analysis to others. My point here is only that their claim that “Many Founders explicitly affirmed this understanding that legislative power could be redelegated just like any other” is not what “James Wilson explained shortly after ratification.” Mortenson & Bagley, supra Note 1 at 299.