From the Spirit of the Federalist Papers to the End of Legitimacy: Reflections on Gundy V. United States

Abstract

The revival of the nondelegation doctrine, foreshadowed last term in Gundy v. United States, signals the end of a distinctive style of legal and political thought. The doctrine’s apparent demise after the 1930s facilitated the development of a methodological approach that embodied what Lon Fuller once called “the spirit of the Federalist Papers”: an openended engagement with the problem of designing democracy and controlling public power. At its best, this discourse was critical and propulsive, with each purported solution generating more questions than it answered. The turn against congressional delegations will likely bring to a close this period of open and self-critical experimentation. In its place, we are likely to see the emergence of warring visions of the administrative state, each claiming legitimacy—neither credibly—according to its own comprehensive normative doctrine. AUTHOR—Acting Assistant Professor of Lawyering, New York University School of Law. Many thanks to Edith Beerdsen, Dominic Budetti, Harlan Cohen, Michael Pollack, David Simson, Richard B. Stewart, Thomas Streinz, and David Zaring for helpful comments and discussions, and thanks to Danielle Berkowsky and the staff of the Northwestern University Law Review for careful and conscientious editing. 114:278 (2020) From the Spirit of the Federalist Papers 279 INTRODUCTION ............................................................................................................. 279 I. THE “SPIRIT OF THE FEDERALIST PAPERS” IN U.S. ADMINISTRATIVE LAW ........... 283 II. NONDELEGATION’S REVIVAL: DISPELLING FULLER’S SPIRIT? ............................... 293 III. LEGITIMACY’S END ............................................................................................... 299