Who’s Afraid of the Administrative State? The Supreme Court. A Conversation with Julian Davis Mortenson

This past June, the Supreme Court reached a decision in West Virginia vs. Environmental Protection Agency that curtailed the EPA’s ability to regulate carbon emissions from coal plants. Behind this ruling was the principle of “non-delegation” — the idea that Congress cannot delegate its legislative powers, or rule-making authority, to other entities such as regulatory agencies. 

While non-delegation might seem like an esoteric legal concept to some, it poses a vital question for United States governance: does the executive branch and its various administrative agencies have the right to exercise control over complex issues such as climate change, public health, and occupational safety?

Julian Davis Mortenson, James D. Phillips Professor of Law at the University of Michigan, joins Then & Now to discuss this question and his recent article Delegation at the Founding. He shares how the Founders approached the principle of non-delegation, as well as how the Supreme Court has taken a bold stand on it that has profound implications for today and the future.