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"The Nondelegation Doctrine: Alive and Well" by Jason Iuliano and Keith E. Whittington (2017)

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"The Nondelegation Doctrine: Alive and Well" (2017) is an article by American legal scholars Jason Iuliano and Keith E. Whittington arguing that history does not support the scholarly consensus that the New Deal nullified the nondelegation doctrine. They analyze over 1,000 state and federal nondelegation cases between 1940 and 2015 and conclude that court approaches to nondelegation do not change much after the supposed judicial revolution of 1937.[1]

HIGHLIGHTS
  • Source: Notre Dame Law Review, Volume 93, 2017
  • Abstract: Iuliano and Whittington provide the following summary of their argument in the paper's 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."[1]

    • Authors

    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."[2][3][4]

    • 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

    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:[5][6]

    • 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

    "The Nondelegation Doctrine: Alive and Well"

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

    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]

    Iuliano and Whittington begin by summarizing their observations about how courts applied the nondelegation doctrine before 1940, which they developed in another paper.[1][8]

    “ Contrary to accepted wisdom, this period was not marked by vigorous enforcement of the nondelegation doctrine. Instead, pragmatic considerations dominated the era. When evaluating the merits of nondelegation challenges, judges tended to permit those delegations that were necessary to a well-functioning government—intervening only when the legislature had ceded power that threatened to undermine the system of checks and balances. To most courts, this principle meant that it was only appropriate to strike down a statute on nondelegation grounds if the legislature had wholly abdicated its responsibility to the public or shielded itself from electoral accountability.[1][9] ”

    Building on that foundation, the authors argue that their analysis of 1,075 nondelegation cases at the state and federal levels between 1940 and 2015 shows that New Deal-era changes did not seem to affect how courts applied the nondelegation doctrine.[1]

    “ Although more than two hundred years has elapsed since the first nondelegation case, little has changed during that time. Today, the doctrine is invoked in the same disputes and implemented in the same manner as it was in the nineteenth century. The narrative of decline that has dominated the past eighty years is wrong. The nondelegation doctrine did not die during the New Deal but rather persists to this day.


    In reaching this conclusion, we drew upon an original dataset of more than one thousand nondelegation challenges. These cases revealed that the pre– and post–New Deal nondelegation eras are characterized more by their similarities than by their differences. With regard to the objects of delegation, the subjects of delegation, and even the invalidation rate, the two periods exhibit a remarkable degree of uniformity. Ultimately, the nondelegation doctrine is notable not for its demise during the New Deal revolution but rather for its surprising persistence through the twentieth and early twenty-first centuries.[1][9]

    		”

    See also

    Full text

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 Notre Dame Law Review, "The Nondelegation Doctrine: Alive and Well" 2017
    2. ↑ Jason Iuliano, "Jason Iuliano," accessed August 30, 2019
    3. ↑ Penn Law, "Jason Iuliano," accessed December 15, 2017
    4. ↑ Utah, Faculty, Jason Iuliano, accessed May 31, 2023
    5. ↑ Princeton University, "Keith E. Whittington," accessed December 15, 2017
    6. ↑ Princeton University, CV - Keith E. Whittington," accessed December 15, 2017
    7. ↑ Legal Information Institute, "Nondelegation Doctrine," accessed August 9, 2018
    8. ↑ University of Pennsylvania Law Review, "The Myth of the Nondelegation Doctrine," 2017
    9. ↑ 9.0 9.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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