Battle for the Constitution: Week of May 25th, 2020 Roundup

Below is a round-up of the latest from the Battle for the Constitution: a special project on the constitutional debates in American life, in partnership with The Atlantic.

There’s No Historical Justification for One of the Most Dangerous Ideas in American Law

By Julian Davis Mortenson, James G. Phillipp Professor of Law, University of Michigan Law School and Nicholas Bagley, Professor of Law, University of Michigan Law School

Julian Davis Mortenson and Nicholas Bagley argue that the Founders did not believe in the nondelegation doctrine—the idea that Congress cannot grant wide discretion to executive agencies to implement laws—and that there is no substantial historical support for originalists who promote the theory to claim otherwise.

The Justice Department Has Had to Twist Itself in Knots to Defend Trump on Emoluments

By Jane Chong, Lawyer, Williams & Connolly

Jane Chong says that, in defending Donald Trump, the Department of Justice has defied its tradition of interpreting the Constitution’s Foreign Emoluments Clause—which restricts government officials from accepting gifts from foreign states—in a way that looks at the simple possibility of if accepting the gift could influence the official’s actions, and has subordinated the public’s interest to the president’s.