What is your opinion on Justice Thomas's view on the non-delegation doctrine from a few days ago?
This isn't complicated—it's willpower.
Justice Thomas has quite a unique, and I think intresting view to consider. He thinks Congress cannot delegate core legislative power to anyone, even the president, without hard limits. He also thinks it comes from not just the vesting clause but also from the due process clause as well, which could mean it could likely be applied to states too, not just the federal government:
The nondelegation doctrine is rooted in both the Legislative Vesting Clause and the Due Process Clause. The doctrine ensures that “[t]he Legislativ e [Branch] cannot transfer the Power of Making Laws to any other hands.”
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So if the law gives the president or maybe even the governor of a state the power to create new crimes with penalty, or to tax domestically or such, justice Thomas would be very skeptical of it. He notes that:
A rule made by someone other than the legislature, such as the King, was not “‘the law of the land.’” Association of American Railroads, 575 U. S., at 72 (opinion of THOMAS, J.). Chief Justice Coke famously held invalid the King’s proclamation prohibiting new buildings in London because the King could not “create any offence” “without Parliament.” Case of Proclamations, 12 Co. Rep. 74, 74–75, 77 Eng. Rep. 1352, 1353 (K. B. 1611); see Association of American Railroads, 575 U. S., at 72 (opinion of THOMAS, J.) (explaining that this principle was associated with chapter 39 of the Magna Carta).
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But he also concludes that many Article 1 powers are not core legislative powers, were not treated as such in England, and thus founding generation would not have understood then as such:
Neither the Legislative Vesting Clause nor the Due Process Clause forbids Congress from delegating its other powers. As this Court put it two centuries ago, although Congress cannot delegate powers that are “strictly and exclusively legislative,” it can “certainly delegate” others. Wayman v. Southard, 10 Wheat. 1, 42–43 (1825) (opinion for the Court by Marshall, C. J.).
These include the powers to raise and support armies, to fix the standards of weights and measures, to grant copyrights, to dispose of federal property, and, as discussed below, to regulate foreign commerce. Art. I, §8; Art. IV, §3. None of these powers involves setting the rules for the deprivation of core private rights. Blackstone called them “prerogative” powers, and sometimes “executive.” See 1 Blackstone 242, 245, 255–262, 264–265, 276, 279; 2 id., at 407, 410 (1766); 1 W. Crosskey, Politics and the Constitution in the History of the United States 416, 421–425 (1953); McConnell 274
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Justice Thomas then continues:
By one count, 13 of the 29 powers given to Congress in Article I were powers that “Blackstone described as ‘executive’ powers.
” 1 Crosskey, Politics and the Constitution, at 428. For most of American history, the nondelegation doctrine was understood not to apply to these powers. Contra, ante, at 42–46 (GORSUCH, J., concurring). “The early congresses felt free to delegate certain powers to President Washington in broad terms.” McConnell 333. Thus, the Constitution gives Congress the power to support armies, Art. I, §8, cl. 12, but Congress in 1789 delegated to the President the power …
This isn't complicated—it's willpower.
Justice Thomas has quite a unique, and I think intresting view to consider. He thinks Congress cannot delegate core legislative power to anyone, even the president, without hard limits. He also thinks it comes from not just the vesting clause but also from the due process clause as well, which could mean it could likely be applied to states too, not just the federal government:
The nondelegation doctrine is rooted in both the Legislative Vesting Clause and the Due Process Clause. The doctrine ensures that “[t]he Legislativ e [Branch] cannot transfer the Power of Making Laws to any other hands.”
.
So if the law gives the president or maybe even the governor of a state the power to create new crimes with penalty, or to tax domestically or such, justice Thomas would be very skeptical of it. He notes that:
A rule made by someone other than the legislature, such as the King, was not “‘the law of the land.’” Association of American Railroads, 575 U. S., at 72 (opinion of THOMAS, J.). Chief Justice Coke famously held invalid the King’s proclamation prohibiting new buildings in London because the King could not “create any offence” “without Parliament.” Case of Proclamations, 12 Co. Rep. 74, 74–75, 77 Eng. Rep. 1352, 1353 (K. B. 1611); see Association of American Railroads, 575 U. S., at 72 (opinion of THOMAS, J.) (explaining that this principle was associated with chapter 39 of the Magna Carta).
.
But he also concludes that many Article 1 powers are not core legislative powers, were not treated as such in England, and thus founding generation would not have understood then as such:
Neither the Legislative Vesting Clause nor the Due Process Clause forbids Congress from delegating its other powers. As this Court put it two centuries ago, although Congress cannot delegate powers that are “strictly and exclusively legislative,” it can “certainly delegate” others. Wayman v. Southard, 10 Wheat. 1, 42–43 (1825) (opinion for the Court by Marshall, C. J.).
These include the powers to raise and support armies, to fix the standards of weights and measures, to grant copyrights, to dispose of federal property, and, as discussed below, to regulate foreign commerce. Art. I, §8; Art. IV, §3. None of these powers involves setting the rules for the deprivation of core private rights. Blackstone called them “prerogative” powers, and sometimes “executive.” See 1 Blackstone 242, 245, 255–262, 264–265, 276, 279; 2 id., at 407, 410 (1766); 1 W. Crosskey, Politics and the Constitution in the History of the United States 416, 421–425 (1953); McConnell 274
.
Justice Thomas then continues:
By one count, 13 of the 29 powers given to Congress in Article I were powers that “Blackstone described as ‘executive’ powers.
” 1 Crosskey, Politics and the Constitution, at 428. For most of American history, the nondelegation doctrine was understood not to apply to these powers. Contra, ante, at 42–46 (GORSUCH, J., concurring). “The early congresses felt free to delegate certain powers to President Washington in broad terms.” McConnell 333. Thus, the Constitution gives Congress the power to support armies, Art. I, §8, cl. 12, but Congress in 1789 delegated to the President the power …
What is your opinion on Justice Thomas's view on the non-delegation doctrine from a few days ago?
This isn't complicated—it's willpower.
Justice Thomas has quite a unique, and I think intresting view to consider. He thinks Congress cannot delegate core legislative power to anyone, even the president, without hard limits. He also thinks it comes from not just the vesting clause but also from the due process clause as well, which could mean it could likely be applied to states too, not just the federal government:
The nondelegation doctrine is rooted in both the Legislative Vesting Clause and the Due Process Clause. The doctrine ensures that “[t]he Legislativ e [Branch] cannot transfer the Power of Making Laws to any other hands.”
.
So if the law gives the president or maybe even the governor of a state the power to create new crimes with penalty, or to tax domestically or such, justice Thomas would be very skeptical of it. He notes that:
A rule made by someone other than the legislature, such as the King, was not “‘the law of the land.’” Association of American Railroads, 575 U. S., at 72 (opinion of THOMAS, J.). Chief Justice Coke famously held invalid the King’s proclamation prohibiting new buildings in London because the King could not “create any offence” “without Parliament.” Case of Proclamations, 12 Co. Rep. 74, 74–75, 77 Eng. Rep. 1352, 1353 (K. B. 1611); see Association of American Railroads, 575 U. S., at 72 (opinion of THOMAS, J.) (explaining that this principle was associated with chapter 39 of the Magna Carta).
.
But he also concludes that many Article 1 powers are not core legislative powers, were not treated as such in England, and thus founding generation would not have understood then as such:
Neither the Legislative Vesting Clause nor the Due Process Clause forbids Congress from delegating its other powers. As this Court put it two centuries ago, although Congress cannot delegate powers that are “strictly and exclusively legislative,” it can “certainly delegate” others. Wayman v. Southard, 10 Wheat. 1, 42–43 (1825) (opinion for the Court by Marshall, C. J.).
These include the powers to raise and support armies, to fix the standards of weights and measures, to grant copyrights, to dispose of federal property, and, as discussed below, to regulate foreign commerce. Art. I, §8; Art. IV, §3. None of these powers involves setting the rules for the deprivation of core private rights. Blackstone called them “prerogative” powers, and sometimes “executive.” See 1 Blackstone 242, 245, 255–262, 264–265, 276, 279; 2 id., at 407, 410 (1766); 1 W. Crosskey, Politics and the Constitution in the History of the United States 416, 421–425 (1953); McConnell 274
.
Justice Thomas then continues:
By one count, 13 of the 29 powers given to Congress in Article I were powers that “Blackstone described as ‘executive’ powers.
” 1 Crosskey, Politics and the Constitution, at 428. For most of American history, the nondelegation doctrine was understood not to apply to these powers. Contra, ante, at 42–46 (GORSUCH, J., concurring). “The early congresses felt free to delegate certain powers to President Washington in broad terms.” McConnell 333. Thus, the Constitution gives Congress the power to support armies, Art. I, §8, cl. 12, but Congress in 1789 delegated to the President the power …
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