The nondelegation doctrine: Alive and well

Jason Iuliano, Keith E. Whittington

Research output: Contribution to journalReview articlepeer-review

7 Scopus citations

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.

Original languageEnglish (US)
Pages (from-to)619-645
Number of pages27
JournalNotre Dame Law Review
Volume93
Issue number2
StatePublished - 2017

All Science Journal Classification (ASJC) codes

  • Law

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