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Alexander Hamilton, The Nondelegation Doctrine, and the Creation of the United States n the period immediately preceding the Constitution's adoption, New Yorkers engaged in a spirited debate over whether a proposed delegation from the State to the federal government authorizing collection of an impost would violate the clause of the New York Constitution that vested "supreme legislative power" in the State Assembly and Senate. Some, like Alexander Hamilton, believed that the clause did not bear on delegations to the federal government, but rather governed the relationship between the branches of the New York government. Others believed that a grant of impost authority impermissibly transferred legislative power away from the state legislature. This Article addresses the debate over delegation that occurred during this controversy-which, in the words of Alexander Hamilton, "begat" the Convention that wrote the U.S. Constitution. The Article also addresses the equally significant debates over delegation that occurred during the consideration of the Constitution itself. As this Article shows, the debates that led to and surrounded the Constitution's adoption were in no small part debates about the legality of delegating sovereign legislative authority.
Can Money Buy Control of Congress?
Congress and Administrative Policymaking: Identifying Congressional Veto Power
Congressional Processes and Public Approval of New Laws
A Congressional Review Act for the Major Questions Doctrine Last Term, the Supreme Court recognized a new major questions doctrine, which requires Congress to provide clear statutory authorization for an agency to regulate on a question of great economic or political significance. This new substantive canon of statutory interpretation will be invoked in court challenges to federal agency actions across the country, and it will no doubt spark considerable scholarly attention. This Essay does not wade into those doctrinal or theoretical debates. Instead, it suggests one way Congress could respond: by enacting a Congressional Review Act for the major questions doctrine. In other words, Congress could establish a fast-track legislative process that bypasses the Senate filibuster and similar slow-down mechanisms whenever a federal court invalidates an agency rule on major questions doctrine grounds. The successful passage of such a joint resolution would amend the agency's governing statute to authorize expressly the regulatory power the agency had claimed in the invalidated rule. In so doing, Congress would more easily have the opportunity to decide the major policy question itself-tempering the new doctrine's asymmetric deregulatory effects and allowing Congress to reassert its primary role in making the major value judgments in federal lawmaking.
Congress Notifications Reinstated on Some Gun Exports The Commerce Department has decided to begin notifying Congress about some applications for semiautomatic gun export licenses, updating a controversial Trump-era regulation that removed the weapons from such congressional review. The move, which took effect in mid-July, falls short of a promise made by then-former Vice President Joe Biden during his presidential campaign to return oversight for such exports to the State Department, which administers the US Munitions List and the provisions under the Arms Export Control Act that provide mechanisms for Congress to block arms sales. Instead, the weapons that fall under the revised rule will remain on the Commerce Control List, which is overseen by the Commerce Department and is undergirded by a different law that does not provide for the same congressional disapproval procedures.
Courts, Congress, and the Conduct of Foreign Relations
Divided Government and Significant Legislation: A History of Congress from 1789 to 2010
Law Within Congress
Message to the Congress on Bolstering Efforts to Bring Hostages and Wrongfully Detained United States Nationals Home
The Place of Congress in the Constitutional Order
Private Delegation Outside of Executive Supervision ver the past decade, the Supreme Court has reworked the landscape of executive branch supervision. The Court has both addressed the scope of executive officials subject to the Constitution's selection constraints in the Appointments Clause and imposed limits on the tenure protections that Congress can bestow on senior agency officials. This refashioning retrenched the functionalist approach that had taken hold in the twentieth century and culminated in the Court's 1989 blessing of independent counsels with authority to investigate the Executive Branch from within. One less-explored question is the degree to which federally prescribed tasks can be carried out by individuals other than government officials. In other words, to what extent can Congress authorize private actors to perform statutorily required components of governmental operations such as arbitration of disputes, creation of standards tied to governmental requirements, fact-gathering, or the performance of evaluations where the result leads to qualification or disqualification for a government service or benefit? Justice Alito raised this key question in a 2015 dispute involving Amtrak, when he questioned the constitutional basis for Amtrak to set metrics and standards governing passenger railroad services operating as a private actor. The question continues to plague government practice, as Congress at times prefers to employ private boards or commissions to set standards such as the quantity and type of routine pediatric services that health insurers must cover under the Affordable Care Act. From the time of the establishment of the first Congress in 1789, the federal government has employed private actors for numerous tasks. Many of those responsibilities, however, involved the provision of contractual services such as measuring the quantities of imported goods, valuing imported items, constructing government buildings, or providing expertise such as autopsy analysis. In modern practice, private boards or arbitration panels have at times made decisions that ultimately bind the rights or obligations of private parties or that establish the substantive content for government mandates. Is there a meaningful, constitutional distinction between the early versus modern acts? What was the understanding at the time of early practice of the limits, if any, that should govern the types of tasks Congress assigned to private actors? Does the non-officer status of private actors free them from constitutional appointments and oaths constraints? Or is there an irreducible minimum of core governmental authority that cannot be delegated to private actors and that must instead be exercised by governmental actors subject to the Constitution's oath and appointments accountability mechanisms? This Article will unpack some of those constitutional complexities by examining the early federal practice of delegating adjudicative patent determinations to private experts, which the Supreme Court briefly considered in its most recent review of executive direction of governmental determinations. Specifically, the position of the patent commissioner, first created by Congress in 1836, was bound by fact-findings of private expert panels when denying patent applications. The Court implicitly suggested last year, in United States v. Arthrex, 141 S. Ct. 1970, 1988 (2021), that this practice did not undermine the modern presidential supervisory structure that the Court went on to mandate for the contemporary patent office because the 1836 panels consisted of just private experts, not officers. What implications, if any, does such a view hold for the scope of power or duties that private actors can exercise outside of the control or supervision of the Constitution, the President, and any constitutional accountability mechanisms purportedly constraining power? Just three years after the1836 boards' creation, Congress went on to eliminate them and transfer their duties to a federal judge. But evidence suggests that policy considerations rather than constitutional concerns drove this development. Although Congress and implicitly the Court apparently have concluded that the binding fact-finding authority of the early boards did not disrupt presidential executive supervision, the evidence suggests that this superficially significant power really was not viewed as constituting core sovereign authority. The Executive Branch today has signed offon far broader private delegation of a potentially constitutionally distinct character. This Article will uncover some of those distinctions and explore how the early view of permissible private delegation, implicitly endorsed by the Supreme Court in 2021, differs substantially from some of the private arbitration and other binding private power that Congress and the Executive Branch have normalized today. The constitutional concerns over too much private delegation raised by jurists such as Justice Alito merit further exploration and may call into question several current governmental practices.
The Wealth of Congress
"Wasteful and Extravagant": When Congressional Committees Proliferate, So Does Entitlement Spending. The Solution, as it Was in the Past, is to Consolidate Control of the Purse
Who Represents Me? Race, Gender, Partisan Congruence, and Representational Alternatives in a Polarized America

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The American Political Science Review
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The Annals of the American Academy of Political and Social Science
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Constitutional Political Economy
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Harvard Journal of Law and Public Policy
International Journal of Politics, Culture, and Society
International Organization
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Journal of Democracy
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National Civic Review
Perspectives on Politics
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Political Analysis
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Political Behavior
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Political Science Quarterly
PS, Political Science & Politics
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Roll Call
Studies in American Political Development
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Texas Journal on Civil Liberties & Civil Rights

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