If We Build It, Will They Legislate? Empirically Testing the Potential of the Nondelegation Doctrine to Curb Congressional “Abdication”

67 Pages Posted: 1 Mar 2022 Last revised: 7 Jun 2022

See all articles by Daniel Walters

Daniel Walters

The Pennsylvania State University (University Park) – Penn State Law

Elliott Ash

ETH Zürich

Date Written: February 27, 2022

Abstract

A widely held view for why the Supreme Court would be right to revive the nondelegation doctrine is that Congress has perverse incentives to abdicate its legislative role and evade accountability through the use of delegations, either expressly delineated or implied through statutory imprecision, and that enforcement of the nondelegation doctrine would correct for those incentives. We call this the Field of Dreams Theory—if we build the nondelegation doctrine, Congress will legislate. Unlike originalist arguments for the revival of the nondelegation doctrine, this theory has widespread appeal and is instrumental to the Court’s project of gaining popular acceptance of a greater judicial role in policing congressional decisions regarding delegation. But is it true?

In this article, we comprehensively test the theory at the state level, using two original datasets: one comprising all laws passed by state legislatures and the other comprising all nondelegation decisions in the state Supreme Courts. Using a variety of measures and methods, and in contrast with the one existing study on the subject, we do observe at least some statistically measurable decrease in delegation, if only by certain measures. However, when put in context, these findings are underwhelming compared to the predictions of the Field of Dreams Theory. For instance, we observe that, even where it exists, this effect is substantively small and on par with a number of other factors that influence delegation—our best estimate is that nondelegation cases explain about 1.5 percent of the variation in delegation. Moreover, we also find some evidence that is directly contrary to the Field of Dreams Theory—that is, we find evidence that enforcement of the nondelegation doctrine actually leads to more implied delegation in the form of vague and precatory statutory language.

These findings have direct relevance to contemporary debate and cases entertaining a revitalization of the nondelegation doctrine in the federal courts. First, the findings that enforcement of the doctrine can prospectively decrease legislative delegation suggest that there may be something to the Field of Dreams Theory, although that in turn raises the stakes of debates over whether less delegation would actually be good for public welfare. Second, even though there is an effect, the weakness of that effect, both in an absolute sense and relative to other factors, undermines the overblown claims that the nondelegation doctrine could fundamentally transform how government works. And finally, our finding that judicial decisions enforcing the nondelegation doctrine can sometimes lead to more implied delegation through imprecise statutory language suggests that there may be unintended consequences from giving the nondelegation doctrine a new lease on life.

Keywords: delegation, nondelegation, administrative law, empirical legal studies, legislation

Suggested Citation

Walters, Daniel and Ash, Elliott, If We Build It, Will They Legislate? Empirically Testing the Potential of the Nondelegation Doctrine to Curb Congressional “Abdication” (February 27, 2022). Cornell Law Review, Forthcoming, Penn State Law Research Paper No. 5-2022, Available at SSRN: https://ssrn.com/abstract=4045079

Daniel Walters (Contact Author)

The Pennsylvania State University (University Park) – Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

Elliott Ash

ETH Zürich ( email )

Rämistrasse 101
ZUE F7
Zürich, 8092
Switzerland

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