The Myth of the Nondelegation Doctrine

51 Pages Posted: 2 Mar 2016  

Keith E. Whittington

Princeton University - Department of Political Science

Jason Iuliano

Yale University - Law School

Date Written: February 25, 2016

Abstract

For much of the nineteenth and early twentieth century, the nondelegation doctrine served as a robust check on governmental expansion. Then, during the New Deal revolution, the Supreme Court reined in the doctrine, thereby paving the way for the rise of the modern administrative state. This story is one we all know well. It is taught in every constitutional law class and has been endorsed by constitutional law scholars since the 1930s. In this Article, we are the first to challenge this narrative.

Our investigation draws upon an original dataset we compiled that includes every federal and state nondelegation challenge before 1940 — more than two thousand cases in total. In reviewing these judicial decisions, we find that the nondelegation doctrine never actually constrained expansive delegations of power. Ultimately, our analysis reveals that the traditional narrative behind the nondelegation doctrine is nothing more than a myth.

Keywords: nondelegation, delegation, constitution, constitution-in-exile, New Deal

Suggested Citation

Whittington, Keith E. and Iuliano, Jason, The Myth of the Nondelegation Doctrine (February 25, 2016). University of Pennsylvania Law Review, Vol. 165, 2016. Available at SSRN: https://ssrn.com/abstract=2738188

Keith E. Whittington (Contact Author)

Princeton University - Department of Political Science ( email )

Corwin Hall
Princeton, NJ 08544-1012
United States
609-258-3453 (Phone)
609-258-1110 (Fax)

HOME PAGE: http://www.princeton.edu/~kewhitt/

Jason Iuliano

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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