Wednesday, March 2, 2016

Whittington and Iuliano on the "Myth of the Nondelegation Doctrine"

Keith E. Whittington and, Jason Iuliano, a doctoral candidate in Politics, both at Princeton University, have posted The Myth of the Nondelegation Doctrine, which is forthcoming in the University of Pennsylvania Law Review 165 (2016):
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.

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