The Nondelegation Doctrine: Alive and Well

28 Pages Posted: 14 Aug 2018

See all articles by Jason Iuliano

Jason Iuliano

University of Pennsylvania Law School

Keith E. Whittington

Princeton University - Department of Political Science

Date Written: December 2017

Abstract

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.

Keywords: Nondelegation; Delegation; Separation of Powers; New Deal; Constitution-In-Exile

Suggested Citation

Iuliano, Jason and Whittington, Keith E., The Nondelegation Doctrine: Alive and Well (December 2017). Notre Dame Law Review, Vol. 93, 2017. Available at SSRN: https://ssrn.com/abstract=3221812

Jason Iuliano (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Keith E. Whittington

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/

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