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Unpublished Paper
Before There Were Mouseholes: Resurrecting the Non-Delegation Doctrine
ExpressO (2015)
  • Joel Hood
Abstract

Most people are unaware that James Madison original drafted 17 amendments for the Bill of Rights. Even fewer know that the 16th was an express non-delegation amendment meant to protect the American people:

The powers delegated by the Constitution to the government of the United States, shall be exercised as therein appropriated, so that the Legislative shall never exercise the powers vested in the Executive or Judicial; not the Executive the powers vested in the Legislative or Judicial; nor the Judicial the powers vested in the Legislative or Executive.

There are now over five-hundred federal agencies and departments. Some are executive, others independent, but most are a far cry from the strict separation of powers originally conceived in the United States Constitution and envisioned in other founding-era documents. The purpose of this paper is to examine those documents and other fundamental writings that influenced the delegates to the Federal Convention of 1787 in order to demonstrate that the non-delegation doctrine was — and still is — an integral and inherent part of separation of powers. In fact, it is the doctrine upon which the bedrock principle of separation of powers was laid. This assertion invites the reader to critique in new light the Court’s decisions regarding the administrative state since J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928).

This article presents compelling evidence: Madison's notes of the Federal Convention, political philosophy in the founding era, founding-era dictionaries, Adams' Thoughts on Government, the individual state constitutions at the time of the ratification of the Constitution, Madison's draft bill of rights, and Chief Justice Marshall's opinion in Wayman v. Southard.

All of this originalist evidence supports the assertion that the non-delegation doctrine is inherent in separation of powers. The Court ought to patrol delegations of inherently legislative power. It can do so by disallowing Congress to abdicate its power to determine what is necessary and proper to other agencies and branches of government.

Keywords
  • non-delegation doctrine,
  • separation of powers,
  • administrative law,
  • bill of rights,
  • federal convention
Publication Date
May 6, 2015
Citation Information
Joel Hood. "Before There Were Mouseholes: Resurrecting the Non-Delegation Doctrine" ExpressO (2015)
Available at: http://works.bepress.com/joel_hood/1/