Explore the vast range of titles available.

In recent articles, a number of scholars have cast doubt on the originalist enterprise of reviving the nondelegation doctrine. In the most provocative of these, Julian Mortenson and Nicholas Bagley challenge the conventional wisdom that, as an originalist matter, Congress cannot delegate its legislative power. The question, they say, is not even close. The Founding generation recognized that power is nonexclusive, and so long as Congress did not \"alienate\" its power by giving up the ability to reclaim any exercise of power, it could delegate as broadly as it wanted to the Executive. In an article focusing on the direct-tax legislation of 1798, Nicholas Parrillo argues in this volume of the Yale Law Journal that although there may have been a nondelegation doctrine at the Founding, it appears to have allowed for broad discretion to regulate even private rights. And in a third article, Christine Kexel Chabot argues that early borrowing and patent legislation demonstrates that Congress routinely delegated important policy questions to the Executive. This Feature rebuts these challenges to a revived, more robust nondelegation doctrine. It demonstrates that there was a nondelegation doctrine at the Founding. To be sure, the history is a bit messy, precluding any kind of categorical conclusion. But when fairly evaluated, there is almost no evidence unambiguously supporting the proposition that there was no nondelegation doctrine at the Founding, while there is significant evidence that the Founding generation believed Congress could not delegate its legislative power. As for the content of that doctrine, it appears that Congress could not, and did not, delegate discretion over \"important subjects\" to the Executive. What are the important policies that must be resolved by Congress is sometimes, of course, in the eye of the beholder. But at most, debates over delegation at the Founding were lower-order disputes over application of this principle, not higher-order disputes over its validity.

The Supreme Court is poised to toughen the nondelegation doctrine to strike down acts of Congress that give broad discretion to administrators, signaling a potential revolution in the separation of powers. A majority of the Justices have suggested in recent opinions that they are open to the far-reaching theory that all agency rulemaking is unconstitutional insofar as it coerces private parties and is not about foreign affairs. If adopted, this theory would invalidate most of the federal regulatory state. Jurists and scholars critical of rulemaking's constitutionality base their claims on the original meaning of the Constitution. But these critics face a serious obstacle: early Congresses enacted several broad delegations of administrative rulemaking authority. The critics' main response has been that these early statutes do not count, because they fall into two areas in which (say the critics) the original nondelegation doctrine did not apply, or applied only weakly: noncoercive legislation (e.g., giving benefits) or foreign-affairs legislation. This Article finds that the originalist critics of rulemaking are mistaken to say that no early congressional grant of rulemaking power was coercive and domestic. There is a major counterexample missed by the literature on nondelegation, indeed by all of legal scholarship, and not discussed more than briefly even by historians: the rulemaking power under the \"direct tax\" of 1798. In that legislation, Congress apportioned a federal tax quota to the people of each state, to be paid predominantly by owners of real estate in proportion to their properties' respective values. Thousands of federal assessors assigned taxable values to literally every house and farm in every state of the Union, deciding what each was \"worth in money\"—a standard that the legislation did not define. Because assessors in different parts of a state could differ greatly in how they did valuation, Congress established within each state a federal board of tax commissioners with the power to divide the state into districts and to raise or lower the assessors' valuations of all real estate in any district by any proportion \"as shall appear to be just and equitable\" —a phrase undefined in the statute and not a term of art. The federal boards' power to revise valuations en masse in each intrastate tax district is identical to the fact pattern in the leading Supreme Court precedent defining rulemaking. Thus, each federal board in 1798 controlled, by rule, the distribution of the federal real-estate tax burden within the state it covered. This Article is the first study of the federal boards' mass-revision power. It establishes that the mass revisions (a) were often aggressive, as when the federal board in Maryland raised the taxable value of all houses in Baltimore, then the nation's third-largest city, by 100 percent; (b) involved much discretion, given serious data limitations and the absence of any consensus method; (c) had a major political aspect, as the federal boards were inheriting the contentious land-tax politics that had previously raged within the state legislatures, pitting the typical state's rich commercial coast against its poor inland farms; (d) were not subject to judicial review; and (e) were accepted as constitutional by the Federalist majority and Jeffersonian opposition in 1798 and also by the Jeffersonians when they later took over, indicating the boards' power was consistent with original meaning or, alternatively, with the Constitution's liquidated meaning. In short, vesting administrators with discretionary power to make politically charged rules domestically affecting private rights was not alien to the first generation of lawmakers who put the Constitution into practice. More broadly, this Article is the first in-depth treatment of the 1798 direct tax's administration. It shows that the tax, measured by personnel, was the largest federal administrative endeavor, outside the military, of the Constitution's first two decades. It is remarkable that today's passionate debate on whether the administrative regulatory state violates the Framers' Constitution has so far made no reckoning with this endeavor. This Article's dataset is available at: https://doi.org/10.7910/DVN/IGMJ7E.

Vermont Yankee is having a renaissance that few are noticing. That canonical 1978 case conventionally stands for the proposition that agencies are generally free to fashion their own procedures. Although one might think that today's Supreme Court would view that pro-agency doctrine skeptically, the opposite is true. In the last ten years, many of the Court's conservatives have invoked the principle, and its invocation in the circuit courts has likewise been lopsidedly conservative. Moreover, at both levels, jurists have applied the principle to questions beyond those in Vermont Yankee, which addressed only the Administrative Procedure Act's (APA) informal rulemaking procedures. In short, Vermont Yankee is a doctrine that conservatives can love and are willing to deploy broadly.

C'era bisogno di una nuova ricerca sull'eccesso di potere? Sì, ce ne era bisogno: per molte ragioni. Intanto, perché non si può inseguire sempre il nuovo, senza tornare di tanto in tanto al vecchio, per vedere se ha resistito al passare del tempo; soprattutto quando si continui a usare il vecchio come schema di interpretazione del nuovo. Poi, perché riflettere sull'eccesso di potere significa prendere in considerazione le situazioni giuridiche soggettive, la discrezionalità, il merito amministrativo, la legittimità, le regole e i principi, la validità, le azioni, il processo, i giudici e altro ancora. Vi è un filo rosso, una stretta connessione, financo un sinallagma tra queste nozioni, tutte parimenti essenziali: non dovrebbe sfuggire, pertanto, che negare la centralità di una delle loro rappresentazioni ha l'effetto, voluto  o paradossale , di respingere il (un certo) sistema del diritto amministrativo. Come potrebbe, per esempio, trascurarsi l'analisi dell'eccesso di potere, se si volesse cancellare l'ombra dell'interesse pubblico dalla tutela giurisdizionale nei confronti della pubblica amministrazione ? O, in termini più crudi, come potrebbe affidarsi all'eccesso di potere un processo che ha introdotto l'azione atipica di condanna al fare, esaltando la logica del rapporto tra soggetto privato e pubblica amministrazione e consentendo di leggere il mancato rispetto delle regole in termini di inadempimento ? [Testo dell'editore]

Section 5(d), the Administrative Procedure Act's (APA's) underutilized declaratory order provision, possesses the power to transform administrative governance. To date, however, agencies have failed to comply with Congress's command to liberally administer section 5(d)'s \"sound discretion\" standard. That standard mandates binding decisions to resolve regulatory uncertainties.