"The Myth of the Nondelegation Doctrine" by Keith E. Whittington and Jason Iuliano (2017)

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"The Myth of the Nondelegation Doctrine" (2017) is an article by American legal scholars Keith E. Whittington and Jason Iuliano arguing that federal and state courts have never consistently applied the nondelegation doctrine to restrain or overturn vast delegations of power and authority. Using an original dataset of pre-1940 federal and state court cases, the authors challenge what they see as the standard narrative of the history of the nondelegation doctrine, particularly the idea that "the classical Constitution of the nineteenth century included a nondelegation doctrine with real teeth, which was subsequently defanged as part of the struggle over the New Deal."[1]

HIGHLIGHTS
  • Source: University of Pennsylvania Law Review, Volume 165, 2017
  • Abstract: Using an empirical study of federal and state court cases from before 1940 that involved nondelegation challenges, Whittington and Iuliano's article argues that the nondelegation was never consistently or regularly applied by the courts to restrain or overturn delegations of power and authority. The authors describe and then challenge what they understand as the standard narrative of the nondelegation doctrine and its history:


    "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."[1]

    • Authors

    Keith E. Whittington

    Keith E. Whittington is an American professor. As of December 2017, he was the William Nelson Cromwell Professor of Politics at Princeton University. According to his faculty profile page on the Princeton University website, Whittington "has published widely on American constitutional theory and development, federalism, judicial politics, and the presidency." Below is a summary of Whittington's education and career:[2][3]

    • Academic degrees:
      • B.A. and B.B.A. in government, finance, and business (1990), University of Texas at Austin, Austin, Texas
      • M.A. (1992) and Ph.D. (1995) in political science, Yale University, New Haven, Connecticut
    • Political science professor and author
    • Member of the American Academy of Arts and Sciences

    Jason Iuliano

    Jason Iuliano is an associate professor of law at the University of Utah, as of July 2023. He was a Ph.D. candidate in political science at Princeton University and a fellow at the University of Pennsylvania Law School in 2019. According to his university profile page and personal website, Iuliano's research interests include "empirical constitutional law and consumer bankruptcy."[4][5][6]

    • Academic degrees:
    • B.A. (2008), Villanova University
    • J.D. (2011), Harvard Law School, Cambridge, Massachusetts
    • Ph.D (2020), Princeton University

    Professional positions and honors

    • Olin-Searle Fellow in Law, University of Pennsylvania Law School, Philadelphia, Pennsylvania, 2017-Present
    • Associate research scholar, Yale Law School, Aug. 2016-July 2017

    "The Myth of the Nondelegation Doctrine"

    See also: Nondelegation doctrine

    The nondelegation doctrine is a principle in constitutional and administrative law that holds that Congress cannot delegate its legislative powers to executive agencies or private entities. It is derived from an interpretation of Article I of the United States Constitution and the separation of powers principle.[7]

    Whittington and Iuliano's article describes and then challenges what they understand as the standard narrative of the nondelegation doctrine "taught in every constitutional law class and has been endorsed by constitutional law scholars since the 1930s:"

    “
    It is generally believed that the classical Constitution of the nineteenth century included a nondelegation doctrine with real teeth, which was subsequently defanged as part of the struggle over the New Deal. The assertion and eventual abandonment of nondelegation principles are part of the conventional historical account of the constitutional transformation of the New Deal period. The tantalizing possibility that a robust nondelegation jurisprudence was 'lost' in the New Deal revolution but could be recovered in the modern era to help constrain or dismantle the modern administrative state has been a recurring feature of libertarian constitutional thought since the Reagan era. In this Part, we recall those constitutional stories. Subsequent Parts will show that these stories are little more than myths. (p. 384)[8]     		”


    Whittington and Iuliano's article claims that prior to 1940, the nondelegation doctrine was not regularly used to limit or overturn delegations of power. The authors base their claim on original data involving federal and state court cases, summarizing their findings as follows:

    “
    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. (p. 379)[8]     		”


    Based on this data, Whittington and Iuliano give their own narrative of the pre-New Deal history of the nondelegation doctrine:

    “
    Many conservative critics of the modern administrative state remain haunted by the notion that among the fatalities of the constitutional battles of the New Deal was a robust nondelegation doctrine that imposed significant restraints on the delegation of regulatory authority to agencies and commissions. ...


    This narrative is more mythical than historical. Constitutional lawyers in the nineteenth century understood that the lawmaking power could not be delegated out of the legislative bodies to which the sovereign people had entrusted it. But they also thought that this constitutional commitment posed little obstacle to the rise of the administrative state. The creation of agencies and commissions filled with experts who could effectively make the regulatory policy that shaped the economy was no doubt innovative and required significant rethinking of traditional governmental forms. But state and federal judges did not hesitate to give their stamp of approval to those institutional innovations. Traditional constitutional principles were thought to be capacious enough to accommodate the new administrative structures. (p. 429)[8]

    		”

    See also

    Full text

    Footnotes

    1. ↑ 1.0 1.1 University of Pennsylvania Law Review, "The Myth of the Nondelegation Doctrine," 2017
    2. ↑ Princeton University, "Keith E. Whittington," accessed December 15, 2017
    3. ↑ Princeton University, CV - Keith E. Whittington," accessed December 15, 2017
    4. ↑ Jason Iuliano, "Jason Iuliano," accessed August 30, 2019
    5. ↑ Penn Law, "Jason Iuliano," accessed December 15, 2017
    6. ↑ Utah, Faculty, Jason Iuliano, accessed May 31, 2023
    7. ↑ Legal Information Institute, "Nondelegation Doctrine," accessed September 5, 2017
    8. ↑ 8.0 8.1 8.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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