The Nondelegation Doctrine: Alive and Well

Jason Iuliano* & Keith E. Whittington**

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.

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© 2017 Jason Iuliano & Keith E. Whittington. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Olin-Searle Fellow in Law, University of Pennsylvania Law School.

**William Nelson Cromwell Professor of Politics, Princeton University. We thank Stephanos Bibas, Richard Epstein, Dan Ernst, Dan Kahan, Sophia Lee, Sandy Levinson, and Richard Re for valuable comments and discussions relating to this project.