The Misuse of History to Undercut the Modern Regulatory State

In recent decades, the U.S. Supreme Court has become increasingly interventionist on issues relating to the appointment and removal of officials. Nondelegation arguments have also escalated and even non-constitutional doctrines such as Chevron are debated in constitutional terms. But according to originalist scholars, who say that the Constitution should be understood based on its meaning at the time of drafting, these are necessary developments. Although I am not an originalist, I had assumed that the originalist case must be a powerful one to justify such a forceful effort to overturn existing precedent. That turns out to have been a mistake on my part. Writing a book on presidential power led me to take a much closer look at the historical record and the recent scholarship on these questions. The work of scholars such as Nicholas Bagley, Daniel Birk, Julian Mortensen, Nicolas Parrillo, and Jed Shugerman, as well as that of their critics, have made me realize that originalist arguments for presidential appointments and removal power and nondelegation positions are not only debatable, but in some cases really shaky.