The Nondelegation Rumble


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.

Nondelegation Doctrine


On Tuesday, Speech First, Inc. filed a free speech lawsuit alleging that the University of Central Florida and its officials “created a series of rules and regulations that restrain, deter, suppress, and punish speech about the political and social issues of the day.” David and Sarah walk us through the history of campus cat and mouse battles over restrictive speech codes and explain whether this lawsuit will matter in the long run. On today’s episode, our hosts also chat about the nondelegation doctrine, the possibility of further criminal prosecution against Donald Trump, and how Rush Limbaugh’s passing might affect the conservative media climate.

Show Notes:

-Speech First vs. Cartwright and Speech First, Inc. v. Gregory L. Fenves.

-Nondelegation doctrine cases: Schechter Poultry Corp. v. United StatesJ.W. Hampton Jr., & Co. v. United States and Gundy v. United States.

-“Trump’s Acquittal Exposed a Republic in Peril” by David French in Time.

-“There’s No Historical Justification for One of the Most Dangerous Ideas in American Law” by Julian David Mortenson and Nicholas Bagley in the Atlantic.

-“Opinion analysis: Court refuses to resurrect nondelegation doctrine” by Mila Sohoni in SCOTUSblog.

Death Penalty Distortion


The Supreme Court on Thursday granted Alabama death row inmate Willie Smith’s request to have his pastor present at his execution, rejecting the state’s claim that having a spiritual adviser present interferes with prison security. Tune in to hear how the Supreme Court’s religious liberty ruling in Dunn v. Smith might affect future death penalty cases. On today’s episode, our hosts also chat about Yuval Levin’s latest piece in National Review on the sorry state of Congress and the New York Times’ 2020 Hulu documentary about Britney Spears.

Show Notes:

-Dunn v. Smith, federal Religious Land Use and Institutionalized Persons Act, and “Bong Hits 4 Jesus” case Morse v. Frederick.

-“Congress’s Day” by Yuval Levin in National Review and “Transcript: Ezra Klein Interviews Yuval Levin About the Future of the Republican Party” in the New York Times.

-Framing Britney Spears Hulu documentary.

Arguments About Arguments


During the second day of the impeachment hearings on Wednesday, we got some more video evidence from the House impeachment managers exhibiting just how close the rioters got to lawmakers during the Capitol siege. “A lot of this was more fully fleshing out how dire the situation was on January 6,” David explains. Stick around for an update on the criminal prosecution of Paul Manafort, new developments at the Department of Justice, the super viral Zoom video of the cat lawyer, and a lament on football-splaining.

Show Notes:

-Video of police officer Eugene Goodman steering Sen. Mitt Romney away from the rioters and Zoom cat lawyer video.

Last Dance for Pandemic Law


After duking it out over their Super Bowl disagreement, David and Sarah get into the meat of today’s episode: The ongoing saga of religious liberty in the age of pandemic law. On Friday, the Supreme Court partly sided with a California church’s First Amendment challenge to religious service restrictions enacted by Democratic Gov. Gavin Newsom. Per David: “Pandemic law—while not entirely gone—is mostly dead.” Stay tuned to hear about technology company Smartmatic’s lawsuit against Fox News, Trump’s First Amendment defense in his impeachment trial, and more.

Show Notes:

-South Bay United Pentecostal Church v. Gavin Newsom.

-Typography for Lawyers by Matthew Butterick.

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