A Wisconsin statute gives local officials broad authority to “do what is reasonable and necessary for the prevention and suppression of disease.” In accordance with this law and with a local ordinance, Dane County’s Director of Public Health issued an order to help prevent the spread of COVID-19 that prohibits mass gatherings and close-contact sport activities. A local business and two residents sued to challenge the order. They argue, among other things, that giving health officials the authority to issue such orders violates Wisconsin’s constitution by impermissibly delegating legislative authority to them. After a court ruled in favor of the health department, the Wisconsin Supreme Court agreed to hear the case.

Along with Law Forward and Stafford Rosenbaum LLC, CAC filed an amicus brief supporting Dane County on behalf of Julian Davis Mortenson, a professor at the University of Michigan Law School and a leading scholar on constitutional history relating to legislative delegations of authority. The plaintiffs challenging the COVID order rely heavily on discussions of the “nondelegation doctrine” under the U.S. Constitution, which they analogize to Wisconsin’s constitution. Our brief shows, however, that no such doctrine exists under the original understanding of the U.S. Constitution.

As the brief explains, at the time of the Founding, legislatures across the Anglo-American world had a long tradition of delegating broad discretionary rulemaking authority to agents, who were not regarded as impermissibly “making law” when they exercised that authority. Consistent with theory and precedent, legislative delegations were a pervasive feature of state governance in America, both before and after Independence.

Moreover, during the first decade after ratification of the Constitution, Congress repeatedly approved sweeping delegations of policymaking authority over the most crucial issues facing the young nation, including giving the president the power to aid quarantine efforts “in such manner as may to him appear necessary.” In short, delegating broad authority to the executive branch was not rare in the nation’s early history—it was routine.

To explain away the powerful evidence of early congressional enactments, proponents of a strict nondelegation doctrine have devised various artificial limiting principles—arguing, for example, that Congress may delegate the authority to “fill in the details” but not to resolve “important” subjects. These distinctions, as we show, are entirely a modern invention. No one articulated them in the Founding era, and the historical record refutes the claim that these distinctions mattered to the Founders when it came to legislative delegations.

The Constitution’s original meaning, in sum, provides no basis for a strict nondelegation doctrine. As a result, the plaintiffs in this case gain no support for their position by drawing comparisons between Wisconsin’s constitution and its federal counterpart.