Day: November 28, 2025

I am grateful to Chad Squitieri, John Grove, and Peter Wallison for their excellent responses to my essay “Nondelegation without Chaos.” Their pieces sharpen the issues and help clarify what is at stake. But as engaging as they are, they do not undermine the core thesis of my essay—that delegation of unguided power to the executive undermines the separation of powers, even as retrospectively invalidating such delegations risks chaos. Nor do any of the responses take issue with my novel method of addressing this problem: prospective overruling. Prospective overruling can restore the separation of power structure without political upheaval.

Begin with Squitieri’s argument that delegation doctrine depends on the constitutional power delegated and is thus not captured by the more unitary perspective for domestic regulation that I suggest. I am not sure I agree with his key analytic move, which depends on a distinction between the plural legislative powers enumerated in Article I and the more general concept of legislative power. To be sure, the phrase “All legislative Powers herein granted” is a prelude to the enumeration of separate powers—but it also designates them all as species of legislative power. Thus, it does not follow that there is no unitary “legislative power” for separation-of-powers purposes. Enumeration may coexist with a single structural nondelegation principle for domestic regulation.

But, in any event, dividing the delegation doctrine into many subdoctrines would not significantly lower the stakes for overruling the current nondelegation doctrine. Almost all delegation of federal regulatory power comes from the Commerce Clause. The Supreme Court has interpreted that Clause to give Congress close to plenary authority in economic matters. Thus, if this doctrine must change substantially under original meaning analysis, we still face the same problems of chaos. Prospective overruling, not the division of delegation doctrine into fragments, remains necessary to the solution.

It is the great virtue of Grove’s response that he recognizes that expansion of the Commerce Clause beyond its original meaning lies behind the problem of excessive delegation as well.

He is also right that this expansion threatens both the horizontal and vertical separation of powers. The problem the Court faces in overruling the decisions that have led to excessive power in the federal legislature is much the same as that it faces in overruling the delegation doctrine that leads to excessive power in the executive. So many statutes have been enacted under this regime that retrospective overruling would engender chaos. Congress would not have the capacity to rewrite all statutes to make them constitutional, nor would states have the capacity to fill the gap immediately.

Thus, the solution to fixing the Court’s overbroad reading of the Commerce Clause also depends on prospective overruling. This approach allows past federal legislation passed under the Commerce Clause to remain in place. But in the future, Congress will be disciplined by the correct reading, allowing both federal and state legislatures to adapt to their proper roles under the Constitution. The restoration of federalism desired by Grove would thereby unfold incrementally, reflecting Burkean wisdom about the need for gradual change.

On the substance of the standard which I suggest, I believe, unlike Wallison, that it will make a difference. Wallison recognizes that the rule has been in place for almost a century and has proved remarkably toothless. Part of the reason is that the test’s very formulation invites passivity. Phrases like “protect the public interest” are “intelligible,” even if they grant almost boundless discretion. But I think it’s far less plausible that a Court could say, with a straight face, that by using this phrase, Congress makes the key policy choices, allowing the agencies only to fill in technical details and find facts.

Whatever its other virtues, Squitieri’s suggestion of building the nondelegation doctrine on the Necessary and Proper Clause is unlikely to be either an adequate or administrable replacement. First, modern doctrine treats this requirement as very lenient. Second, the “proper” prong would still require a freestanding account of what counts as impermissible lawmaking, and the Court has been reluctant to turn the Clause into a general‑purpose constraint, likely for justiciability reasons. Third, it also lacks support in early Supreme Court precedent of an approach that forbids delegating policy while allowing executive administration, such as interpretation and fact-finding. That approach states the line the courts must police rather than asking the Necessary and Proper Clause to supply one.

I also disagree with Squitieri that the test which Professor Michael Rappaport and I suggest is not administrable. Under our view, in the realm of domestic regulation, Congress may not delegate policymaking but may permit the executive to interpret and apply the law to facts. The distinction between policymaking and executive implementation is rooted in Madison’s insistence, as reflected in his own writings, that federal laws must provide “details, definitions, and rules.”

First, Courts should and do enforce the Constitution even when such enforcement requires nice judgments. The Supreme Court has long enforced the reasonable standard of the Fourth Amendment, even though the lines to be drawn are a matter of judgment. Likewise, while the First Amendment has a core meaning, jurists regularly debate questions such as whether a restriction is a reasonable time, place, and manner regulation. The Dormant Commerce Clause has often required delicate balancing.

The argument that any fuzzy edges preclude enforcement of the constitutionally required delegation doctrine is inconsistent with much constitutional jurisprudence. It usually reflects the view that such a separation-of-powers constraint should be left to the political, not the judicial, process. I disagree entirely with the view that structural provisions are second-class constitutional strictures. They are no less protective of our liberties than rights provisions and thus should be enforced even when they pose similar difficulties.

Second, the difficulties of a classical test for nondelegation are much exaggerated. The Constitution’s allocation of lawmaking power can be enforced by adhering to the formal distinction between making law and executing it. A formalist judge approaching a delegation case would begin by defining legislative power in concrete terms as the authority to establish generally applicable rules governing private conduct a statute grants the executive branch open-ended discretion to decide what rules or standards the public must obey (beyond merely applying a law’s provisions to facts), then the statute is effectively transferring Congress’s core legislative power and should be struck down. But if the statute only allows the executive to implement Congress’s determinate policy by filling in factual details or technical measures, it permits the executive only administrative, not legislative power. That is the approach Justice Neal Gorsuch suggests in his dissent in Gundy, echoing Chief Justice Marshall’s classic formulation that Congress may not delegate “powers which are strictly and exclusively legislative,” only the authority to fill in details or find facts.

Finally, prospective overruling will create a separation-of-powers dynamic that may spare the Court much of the heavy lifting. Congress will have incentives to legislate more comprehensively, for fear that failing to do so will render its legislation ineffective. Moreover, it can establish its own expert agencies in subject-matter areas to advise it, thereby gaining the knowledge needed for more precise drafting. Thus, I think even if Congress today lacks the capacity to provide more detailed administrative legislation, it can undertake institutional reforms to be in a better position to do so. In short, prospective overruling should make the judicial branch’s job easier by giving Congress fair warning.

The Roberts Court has made real progress in aligning the administrative state with the Constitution. But its prior moves on appointment, removal, and the major questions doctrine have been relatively easy, because they either do not touch the substance of regulation or still permit Congress to enact broad delegations so long as it speaks clearly. Overruling the permissive delegation doctrine prospectively would be a harder step. Still, it would do what these other doctrines cannot—restore the separation of powers at the point where law is made. By applying a stricter nondelegation principle only in the future, the Court can promote a regime more faithful to the Constitution while respecting the reliance that citizens and institutions have placed in the prior one.

In 1959, Cuba ranked near the top among Latin American nations in standard of living. Today, after nearly seventy years of communist rule initiated by a dictator whose coming to power was celebrated by many American Marxists, it ranks near the bottom. The working class has not been empowered; it has been immiserated.

It’s important to begin this review with a dose of reality, because intellectual history, focused as it is on the world of ideas, is too often detached from the real world in which those ideas live. Nowhere is this truer than in the universe of Marxist theory, which prides itself on allegedly taking its cues from the hard facts of economic life but is nonetheless characterized by a marked refusal to do so. This problem suffuses Andrew Hartman’s new intellectual history survey, Karl Marx in America.

Hartman is a fine writer who manages to keep reasonably interesting a 550-page treatment of the reception and mutation of Karl Marx’s ideas over the course of American history. In one clever turn of phrase, for example, he characterizes a popular summary of Capital as “a tempting alternative to the long march through the original text.” We meet early radical activists such as Big Bill Haywood and Elizabeth Gurley Flynn, influential intellectuals such as Sidney Hook and Max Eastman, and black Marxists such as C. L. R. James and Angela Davis. Hartman is admirably comprehensive and careful in his coverage of American Marxists; readers will come away with a good understanding of the breadth and complexity of Marxist thought in the United States, as well as its relationship to other intellectual streams such as liberalism and conservatism. He places on full display the rancorous dissension that flourished within the ranks of self-identifying Marxists, who often disagreed sharply regarding the correct interpretation and application of Marx’s corpus.

Unfortunately, Hartman’s assessment of Marxism is not as reliable as his description of it, nor is his handling of non-Marxist thinkers as judicious as that of their opponents. When he presents Marxist figures, the sketch is nuanced and careful; when he depicts others, it is too often the opposite. His treatment of James Buchanan and public choice theory is especially shabby. In Hartman’s telling (drawing in part on Nancy McLean’s tendentious account), Buchanan’s scholarship was tainted by racism, and his “resistance to civil rights … launched a long and productive career of tailoring economic ideas to serve reactionary forces.”

The book is also troubled by a problem at the heart of the historiography of American Marxism. On one hand, its historians argue, Karl Marx is a towering figure of incalculable importance. Even in the United States, his impact, though muted by various circumstances of American political and intellectual culture, has been substantial—after all, it merits this hefty tome. At the same time, their discussions of Marxism are laced with the language of “red scare,” “witch hunt,” and “paranoia.” Marxism’s historians, it seems, want to have it both ways: Marx is a seminal thinker, inspiring an array of intellectuals and activists to theorize about and strive to bring into being a revolution of the proletariat; and at the same time mainstream liberals and conservatives absurdly act as though Marxism is a threat to be taken seriously—as if a communist revolution could ever happen in the United States! In this view, anti-Marxists are either paranoid or hypocritically cynical, using the specter of communism to gain political ends but not really believing their own hype. This problem is on display, inter alia, in Hartman’s treatment of the World War I-era panic over Bolshevism, where he writes of “reactionaries” who provoked a “red scare.” But just pages earlier, he had frankly described the strenuous efforts of Marxist propagandists, including A. Philip Randolph’s publication, The Messenger, which celebrated Lenin’s 1917 Russian revolution as “the greatest achievement of the twentieth century.” A “red scare” is not as irrational as it sounds when there are, in fact, scary reds on the prowl.

The truth of the matter lies, as it so often does, in the murky middle. Communist revolution was indeed a real threat in the United States, as it was elsewhere. It faced an uphill climb in America, due to—among other reasons—relatively robust belief in the rule of law and in the Christian religion, both of which offer poor soil for the flourishing of Marxist ideas. Another related factor that kept Marx at bay was a strong anti-communist movement. As Hartman’s account shows, anti-Marxism did sometimes tip into paranoia and hysteria; the epithet “McCarthyism” rests on a real foundation of red baiting that does not reflect the best of American conservatism. What he seems to miss entirely, however, is that part of the reason that Marxism had trouble succeeding in America is precisely because insightful critics have correctly understood it, perceived its flaws, and labored to keep it from metastasizing in the country’s political culture. Whittaker Chambers, whose importance Hartman rightly ascertains, is Exhibit A.

Although Hartman does not present it in these terms, his book can be seen as continuing a long tradition of Marxist theory that puzzles over the question, “Why no communist revolution in America?” The United States (in this view) is ripe for such a great leap forward: so much capitalism, so many exploited workers. Yet, as Hartman’s narrative makes clear—and to the everlasting consternation of the German theorist’s votaries—Marx has struggled to gain traction within the capitalist superpower. This discomfort runs as a theme throughout Hartman’s story: the more unadulterated the Marxism, the less popular it is. The Knights of Labor, Eugene Debs, and Bernie Sanders all enjoyed large followings, but they were only desultory Marxists. Figures like Daniel De Leon and C. L. R. James were fully committed, major figures in American Marxism, but only minor figures in American history.

Hartman, the capable historian, knows this. Describing the response to an 1886 lecture tour by Karl Marx’s daughter, Eleanor Marx Aveling, he writes that “most workers appeared skeptical.” Even at the apex of socialist political popularity in the 1910s, he notes, “most voters preferred the progressive option to the socialist one.” But Hartman, the admirer of Marxism, cannot put the pieces together. Could it be that the lack of anticapitalist revolutionary ferment in the United States is a result of the fact that rank-and-file workers find the American system (call it “democratic capitalism” or some other imperfect title) superior to what Marx has to offer? Instead, Hartman imagines, eventually the oppressed will understand where salvation lies, recognize “capitalism’s propensity to destroy” and discover Marx’s “compelling answers,” which have been “vindicated by history.”

As is so often the case with politically inflected histories, distortion increases the closer we get to the present. Hartman writes of the “death spiral” of capitalism following its “golden age” that was enabled by “New Deal reforms”—a demise brought on in part by “a conservative movement … that worked tirelessly at the behest of capital to crush labor.”

Ronald Reagan “embraced his role as the nation’s unapologetic defender of wealth from day one, signaled by the $25,000 gown First Lady Nancy Reagan wore to an inaugural ball.” (Bernie Sanders’s three homes are never mentioned.) Reagan’s vices extended to foreign policy as well: “As Reagan turned back the clock on how the government treated labor, he also strained to reignite the Cold War, which had grown far less tense in the 1970s.” Things have only gotten worse in the decades since, Hartman says, pointing to a growing litany of ailments that can be laid at the feet of a single cause: the “return to Gilded Age levels of economic inequality” that was “fueled” by “neoliberalism.” “Beginning in the 1980s,” he laments, “hunger and homelessness proliferated. Drug addiction, gun violence, depression, and suicide all reached epidemic levels. By 2020 … over one hundred thousand Americans were dying of drug overdoses each year.” Moreover, “things were worse in many other parts of the world, as over a billion people are now warehoused in … a ‘planet of slums.’”

At no point in this narrative of declension from a previous golden age does Hartman offer statistics regarding the proportion of the world’s population living in abject poverty in, say, 1900 or 1950, compared to 2000 or 2020. There are legitimate criticisms to be made of the world economic order over the last fifty years, but the unqualified assertion that it is a one-dimensional story of benefits flowing to the wealthy simply cannot be squared with reality.

Marxists have often been cagey about the place of violence in their worldview, and Hartman is no exception. In some places, he seems to decry it; in others, he is less forthright. Regarding one instance of the latter, events have run ahead of Hartman’s text to a distressing degree. He celebrates the self-consciously Marxist art of rapper and filmmaker Boots Riley, who “effortlessly merged infectiously funky beats with bitingly hilarious revolutionary messaging.” Among Riley’s creations were a 1992 album titled Kill My Landlord and a 2001 song, “5 Million Ways to Kill a C.E.O.” Hartman’s manuscript was certainly in production before the 2024 murder of health insurance CEO Brian Thompson, so it would be unfair to suggest any intentional linkage. But some reconsideration of whether lyrics glorifying anti-capitalist violence are “hilarious” should be in order.

Notwithstanding its mediocre career so far, Hartman is cautiously optimistic about the prospects of Marxism in the United States, finding hope in the campus activism of recent years. Collegians who are considering immersing themselves in Marxist theory and praxis might do better to take advice from a different page of this book. Discussing the early twentieth-century socialist firebrand Elizabeth Gurley Flynn, Hartman notes that she wished her father had “spent more time job hunting and less time reading Marx.”

Karl Marx observed alienation, inequality, and exploitation, and he anticipated a brighter future brought about by class conflict and violent revolution. But there were other traditions of thought, some of more ancient vintage, that confronted the same problems from a radically different perspective. Pope Leo XIII’s encyclical Rerum Novarum, promulgated in the years between the publication of the second and third volumes of Capital, denied the efficacy of the Marxist solution. Were private property to be abolished, the pope wrote, “the door would be thrown open to envy, to mutual invective, and to discord; the sources of wealth themselves would run dry, for no one would have any interest in exerting his talents or his industry; and that ideal equality about which [socialists] entertain pleasant dreams would be in reality the levelling down of all to a like condition of misery and degradation.” The evidence from Russia, Korea, Cuba, Venezuela, and elsewhere indicates that Leo had a surer grasp of human nature and economic reality than did Marx.

Leo understood the natural inclination to class strife, but instead of encouraging it, he warned of its dangers. He urged cooperation not because he was a shill for capitalist interests or because he sought to supply the masses with an “opiate” to inure them to their sorry condition, but because he perceived that solidarity, founded on the view of the other as worthy of dignity regardless of ethnic or socioeconomic difference, was the path out of exploitation. The pope’s view of the matter mirrors what Michael Lucchese recently wrote in this same venue: “Radicalism and revolution promise strength to overcome oppression and crisis, but, in the end, they just foster a cycle of violence that can redeem no one.”

The question of who was right—Marx or Leo—divided opinion in the late nineteenth century, and it continues to divide today. Hartman, following the intellectual forebears he engagingly chronicles, sees it one way; most Americans another. “American common sense has it that capitalism is here to stay,” he acknowledges on the final page of the book. “Karl Marx and American common sense do not hang together.”

May it ever be so.