Lively on Historical Custom and the Custom House: How Custom House Governance From 1789 to the Early 1800s Contradicts a Strong Nondelegation Doctrine

Matthew Lively, University of Chicago Law School, has published Historical Custom and the Custom House: How Custom House Governance from 1789 to the Early 1800s Contradicts a Strong Nondelegation Doctrine in the University of Chicago Business Law Review Online Edition '24. Here is the abstract.

The nondelegation doctrine, that Congress cannot delegate its legislative powers or lawmaking abilities to other entities, is front and center as the Supreme Court readies to weaken or dismantle the modern administrative state. This article provides a historical argument that the nondelegation doctrine did not enjoy pre-eminence during the Founding, as some originalists, including the respondents in Securities and Exchange Commission v. Jarkesy, claim. Federal custom house governance from 1789 to the early 1800s, which nearly unilaterally funded the government, was largely nominally directed by both Congress and the executive and was characterized by broad discretion.

Download the essay from SSRN at the link.