TY - JOUR
T1 - The myth of the nondelegation doctrine
AU - Whittington, Keith E.
AU - Iuliano, Jason
N1 - Publisher Copyright:
© 2017 University of Pennsylvania Law Review.
PY - 2017/1
Y1 - 2017/1
N2 - For much of the nineteenth and early twentieth centuries, 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.
AB - For much of the nineteenth and early twentieth centuries, 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.
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M3 - Review article
AN - SCOPUS:85011290525
SN - 0041-9907
VL - 165
SP - 379
EP - 431
JO - University of Pennsylvania Law Review
JF - University of Pennsylvania Law Review
IS - 2
ER -