Last year, Professor Nicholas Parrillo published an important article challenging the conventional originalist narrative concerning the nondelegation doctrine, "A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s." In this article (which I noted here), Professor Parrillo discussed how early Congresses delegated power to federal boards of tax commissioners in each state to, among other things, revise tax assessments across-the-board, and argued this was a clear example of the delegation of broad, rule-making power that had a coercive effect on private citizens domestically. This paper is part of a burst of recent scholarship on whether the nondelegation doctrine has legitimate originalist roots.
In a new paper posted on SSRN, "Nondelegation Blues," Professor Philip Hamburger responds to Parrillo (and other critics of the conventional originalist narrative) and argues that "fundamental principles, drafting assumptions, and text were all aligned in barring transfers of power among the branches of government."
In a post on the Yale Journal on Regulation's "Notice & Comment" blog, Parrillo takes issue with one aspect of Hamburger's critique (though noting he would also contest others). His post suggests Hamburger has missed the thrust of his argument and its significance for the debate over nondelegation. Focusing on one particular passage in Hamburger's paper, Parrillo writes:
