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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.
-The Second Founding: An Introduction to the Fourteenth Amendment by Ilan Wurman.
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David and Sarah, thank you for this podcast. I strongly recommend inviting Philip Hamburger on Advisory Opinions to discuss. At the risk of telling you what you already know. Philip Hamburger is Professor of Law at Columbia University School of Law, and author of the enormous 2014 book "Is Administrative Law Unlawful?" He addresses the nondelegation doctrine at Chapter 20.
That was a lot of fun...and your guests were a lot of fun, but, boy do they talk fast...lol...is that a lawyer thing?...lol
One comment on the women being drafted...I am so glad I am not of drafting age, because no way would I be ok with it, both for practical and ideological reasons...