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165 U. Pa. L. Rev. 379 (2016-2017)
The Myth of the Nondelegation Doctrine

handle is hein.journals/pnlr165 and id is 390 raw text is: ARTICLE THE MYTH OF THE NONDELEGATION DOCTRINE KEITH E. WHITTINGTONt & JASON IULIANOtt 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 193os. 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. INTRODUCTION ............................................................................ 380 I. THE CONSTITUTION IN EXILE ........................................... 384 II. DEVELOPMENT OF THE NONDELEGATION DOCTRINE......... 388 A. The Constitutional Foundations..................................................... 388 B. The Doctrine in the Supreme Court ................................................ 392 C. The Doctrine in State and Lower Federal Courts ............................. 405 III. JUDICIAL PRACTICE IN NONDELEGATION CASES ...................... 417 CONCLUSION................................................................................. 429 (379) t William Nelson Cromwell Professor of Politics, Princeton University. t t Associate Research Scholar, Yale Law School; Ph.D. candidate in Politics, Princeton University; J.D., Harvard Law School. We thank Richard Epstein, Samuel Estreicher, Roger Ford, Jacob Gersen, and Daniel Kelly for valuable comments and discussions relating to this project.

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