Hot Oil and Hot Air: The Development of the Nondelegation Doctrine through the New Deal, a History 1813-1944
![handle is hein.journals/hascq35 and id is 941 raw text is: Hot Oil and Hot Air:
The Development of the Nondelegation
Doctrine Through the New Deal, a History,
1813-1944
by ANDREW J. ZIAJA*
The standard set up by the statute is not a rule of law; it is
rather a way of life. Life in all its fullness must supply the answer to
the riddle.'
- Justice Benjamin N. Cardozo
Introduction
Nondelegation as a concept is nearly as old as the Constitution
itself. Its proponents have argued since the early Nineteenth Century
that Articles I and II assign certain powers separately to the executive
and legislative branches and that those powers, which are distinctly
executive or legislative by nature, cannot be transferred from one
branch to another. The doctrine is a product of the structure of the
constitution, in other words. Despite its long existence, however, it
has never thrived.
In 2001, Supreme Court Justice Clarence Thomas breathed yet
new life into scholarly debate over the nondelegation doctrine in his
* J.D. 2008 (expected), University of California, Hastings College of the Law; B.A. 2003,
University of Michigan, Ann Arbor, History with Honors. After a year as a graduate
student in history at the University of California, Berkeley, Andrew came to Hastings and
eventually became Managing Editor of the Hastings Constitutional Law Quarterly. He
will begin his legal career as a judicial clerk in the United States Department of Labor,
Office of Administrative Law Judges. Andrew is grateful to many people: Professor
Reuel Schiller for supervising this note; Professor Ashutosh Bhagwat for his comments;
Rachel Rubin and the rest of the CLQ editors for an exceptional year; his family; and,
most of all, Sonya Palay for seven years of love and adventure. If a romantic gesture can
be deciphered from a note on the nondelegation doctrine, please consider it as such.
1. Welch v. Helvering, 290 U.S. 111, 115 (1933); also Louis L. Jaffe, An Essay on
Delegation of Legislative Power: 1, 47 COL. L. REV. 359, 359 (1947).
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Hot Oil and Hot Air: The Development of the Nondelegation Doctrine through the New Deal, a History 1813-1944
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