Last week, the en banc Fifth Circuit, by vote of 9 to 7, issued an opinion holding that a provision of the Telecommunications Act of 1996 violates the nondelegation doctrine, creating a circuit split.  The opinion spends four pages discussing my article A Critical Assessment of the Originalist Case Against Administrative Regulatory Power, 130 Yale L.J. 1288 (2021), and Philip Hamburger’s response to me in his article Nondelegation Blues, 91 Geo. Wash. L. Rev. 1083, 1209-14 (2023).  

My article is about congressional legislation of 1798 that imposed a tax on real estate nationwide and delegated power to federal administrative boards (one covering each state) to divide their respective states into districts and to raise or lower the taxable value of all land parcels in each district by any percentage “as shall appear to be just and equitable.”  The power was sweeping.  For example, the board covering Virginia (including what is now West Virginia) controlled the taxable values of more real estate than in all of England.  And the boards were not shy about exercising their power, as when the board covering Maryland raised the taxable value of all houses in Baltimore (then the nation’s third-largest city) by 100 percent. 

The Fifth Circuit adopts Hamburger’s argument that this delegation is insignificant for originalist analysis of today’s nondelegation controversies because the boards’ power was mere fact-finding (slip opinion, pp. 61-64).  I respectfully disagree.  

Mass real-estate valuation was not objective fact-finding, like weighing a shipment of sugar.  Instead, such valuation depended on the decisionmaker’s selection among divergent possible definitions of value and methods for determining it (on which Congress in 1798 deliberately gave no direction), was recognized by contemporaries as uncertain and contested, and was the object of intense conflict in several state legislatures who taxed land by value prior to 1798, where politics filled the vacuum of objectivity.  

This raises the question of whether one can define a category of “fact-finding” that (1) encompasses determinations that are non-objective, open-ended, sweeping, and politically contested but (2) is still somehow distinct in a meaningful and workable way from other kinds of administrative decisions that are supposedly non-delegable.  The Fifth Circuit, quoting Hamburger, claims that fact-finding decisions were distinct in that they were “‘expected to mimic judicial decisions … in being exercises of judgment’ as opposed to legislative will” (slip opinion, p. 62).  The idea, then, is that we can distinguish agency decisions that are legitimately delegable from those that aren’t by looking to expectations about whether the decisions are to involve judgment or will. 

I’ve recently argued that this approach is neither grounded in founding-era history nor workable as a matter of present-day doctrine.  That argument appears in a response to Hamburger and other academic critics that I published in Drake Law School’s annual con-law symposium just a few weeks before the Fifth Circuit handed down its opinion.  See Parrillo, Nondelegation, Original Meaning, and Early Federal Taxation: A Dialogue with My Critics, 71 Drake L. Rev. 367 (2024), especially Section II.C.  

A full sense of my differences with Hamburger (and thus with the Fifth Circuit) can be gleaned from the Drake article.  In the limited space of this blog post, I will take a moment to note one narrow technical issue that readers may miss if they are new to this rather esoteric debate.  At one point, the Fifth Circuit seems to suggest that Americans in the 1790s believed land valuation was objective, relying upon a 1796 report of the U.S. Treasury Secretary that referred to the goal of obtaining a “correct valuation” of land (slip opinion, p. 63).  But the word “correct” in the 1700s could refer to subjective and political claims, in contrast to its implication in today’s English of objective factual certainty.  See Parrillo, 71 Drake L. Rev. at 408 n.252.  Indeed, the Treasury Secretary in that same report suggested that each federal board could choose its own “principles of valuation” that could differ from the principles of other boards.  Quoted in Parrillo, 130 Yale L.J. at 1366.  More broadly, the Fifth Circuit does little to engage the copious evidence that mass land valuation in the 1780s-1790s was indeterminate, politically contestable, and widely recognized as such.  See Parrillo, 130 Yale L.J. at 1339-1417.^[1]  

Nicholas R. Parrillo is Townsend Professor of Law at Yale. 

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^[1] While the Fifth Circuit distinguishes the 1798 legislation from the Telecommunications Act mainly by adopting the distinction articulated by Hamburger (i.e., that the delegated power of 1798 involved merely an exercise of judgment, in contrast to delegated powers that involve exercises of will), the opinion also briefly invokes two other distinctions.  First, at p. 61, the Fifth Circuit invokes the distinction between money-raising legislation that fixes the amount to be raised, like the 1798 act did, and money-raising legislation that delegates the setting of the amount, like the Telecommunications Act does.   But I doubt that this distinction provides a sufficient formula for deciding nondelegation questions.  Can Congress authorize an agency to distribute a financial burden among the populace on the basis of pure official whim, so long as the total burden is statutorily fixed?  Inversely, can Congress never delegate the power to decide how much money is to be raised for some purpose, no matter how specific Congress is in providing criteria for the agency to calculate the sum?  The real nondelegation test must lie elsewhere.  Second, at p. 64, the Fifth Circuit invokes the distinction between delegated power exercised only by public officials, as in the 1798 legislation, and delegated power exercised partly by private actors, as in the Telecommunications Act.  I agree this is a real distinction between the two acts.  But a nondelegation test focused on the role of private actors will have only limited application to today’s administrative state.