The Nondelegation Doctrine: Alive and Well

By Iuliano, Jason; Whittington, Keith E. | Notre Dame Law Review, December 2017 | Go to article overview

The Nondelegation Doctrine: Alive and Well


Iuliano, Jason, Whittington, Keith E., Notre Dame Law Review


The nondelegation doctrine is dead. It is difficult to think of a more frequently repeated or widely accepted legal conclusion. For generations, scholars have maintained that the doctrine was cast aside by the New Deal Court and is now nothing more than a historical curiosity. In this Article, we argue that the conventional wisdom is mistaken in an important respect.

Drawing on an original dataset of more than one thousand nondelegation challenges, we find that, although the doctrine has disappeared at the federal level, it has thrived at the state level. In fact, in the decades since the New Deal, state courts have grown more willing to invoke the nondelegation doctrine. Despite the countless declarations of its demise, the nondelegation doctrine is, in a meaningful sense, alive and well.

INTRODUCTION                                                         619
  I. THE LIFE AND DEATH OF THE NONDELEGATION DOCTRINE                621
     A. THE DOCTRINE'S LIFE                                          621
     B. THE DOCTRINE'S DEATH                                         623
 II. THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION                    626
III. THE PERSISTENCE OF THE NONDELEGATION DOCTRINE                   634
     A. SUCCESS RATE                                                 635
     B. PRE--AND POST--NEW DEAL COMPARISON                           639
     C. REPRESENTATIVE CASES                                         643
CONCLUSION                                                           645

INTRODUCTION

The story of the nondelegation doctrine's demise is a familiar one. Eighty years ago, the New Deal Court discarded this principle, and since then, this once-powerful check on administrative expansion has had no place in our constitutional canon. Although lawyers continue to invoke the doctrine--like mystics trying to raise the dead--their efforts inevitably prove futile. As Cynthia Farina colorfully noted, "If Academy Awards were given in constitutional jurisprudence, nondelegation claims against regulatory statutes would win the prize for Most Sympathetic Judicial Rhetoric in a Hopeless Case." (1) Today, most scholars agree that the nondelegation doctrine is nothing more than an artifact of history--perhaps curious to examine and interesting to ponder, but of no import beyond the borders of academia.

In this Article, we question the scope of the doctrine's death. Drawing upon an original dataset of more than one thousand nondelegation cases, we find that, despite the doctrine's disappearance at the federal level, it has become an increasingly important part of state constitutional law. Contrary to the conventional wisdom, the nondelegation doctrine is alive and well, albeit in a different location.

Through our analysis, we challenge a core aspect of what we have previously referred to as the myth of the nondelegation doctrine. (2) There are two distinct parts to this mythology. The first commemorates the doctrine's life. This part of the narrative maintains that the doctrine was once a robust and important part of the pre--New Deal order. Across the nineteenth and early twentieth century, it supposedly served as a powerful constraint on the exercise of political authority.

The second part of the nondelegation myth recounts the death of the doctrine--placing its collapse in the late 1930s. The story goes that, alongside such rules as substantive due process and dual federalism, the nondelegation doctrine was cast into the "constitution in exile" during the judicial revolution of 1937. What was a vibrant constitutional rule in the early twentieth century was banished from the constitutional landscape following the New Deal. In a previous article, we showed that the first part of this myth is wrong. (3) In this Article, we show that the second part fails to capture an important way in which the nondelegation doctrine has survived. Our argument proceeds as follows. …

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