THE NONDELEGATION DOCTRINE: ALIVE AND WELL.

• Author: Iuliano, Jason

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.

INTRODUCTION 619 I. THE LIFE AND DEATH OF THE NONDELEGATION DOCTRINE 621 A. THE DOCTRINE'S LIFE 621 B. THE DOCTRINE'S DEATH 623 II. THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION 626 III. THE PERSISTENCE OF THE NONDELEGATION DOCTRINE 634 A. SUCCESS RATE 635 B. PRE--AND POST--NEW DEAL COMPARISON 639 C. REPRESENTATIVE CASES 643 CONCLUSION 645 INTRODUCTION

The story of the nondelegation doctrine's demise is a familiar one. Eighty years ago, the New Deal Court discarded this principle, and since then, this once-powerful check on administrative expansion has had no place in our constitutional canon. Although lawyers continue to invoke the doctrine--like mystics trying to raise the dead--their efforts inevitably prove futile. As Cynthia Farina colorfully noted, "If Academy Awards were given in constitutional jurisprudence, nondelegation claims against regulatory statutes would win the prize for Most Sympathetic Judicial Rhetoric in a Hopeless Case." (1) Today, most scholars agree that the nondelegation doctrine is nothing more than an artifact of history--perhaps curious to examine and interesting to ponder, but of no import beyond the borders of academia.

In this Article, we question the scope of the doctrine's death. Drawing upon an original dataset of more than one thousand nondelegation cases, we find that, despite the doctrine's disappearance at the federal level, it has become an increasingly important part of state constitutional law. Contrary to the conventional wisdom, the nondelegation doctrine is alive and well, albeit in a different location.

Through our analysis, we challenge a core aspect of what we have previously referred to as the myth of the nondelegation doctrine. (2) There are two distinct parts to this mythology. The first commemorates the doctrine's life. This part of the narrative maintains that the doctrine was once a robust and important part of the pre--New Deal order. Across the nineteenth and early twentieth century, it supposedly served as a powerful constraint on the exercise of political authority.

The second part of the nondelegation myth recounts the death of the doctrine--placing its collapse in the late 1930s. The story goes that, alongside such rules as substantive due process and dual federalism, the nondelegation doctrine was cast into the "constitution in exile" during the judicial revolution of 1937. What was a vibrant constitutional rule in the early twentieth century was banished from the constitutional landscape following the New Deal. In a previous article, we showed that the first part of this myth is wrong. (3) In this Article, we show that the second part fails to capture an important way in which the nondelegation doctrine has survived. Our argument proceeds as follows.

In Part I, we detail the myth of the nondelegation doctrine and present the conventional wisdom regarding how the doctrine was cast into darkness during the New Deal. In Part II, we test the empirical claims that follow from this traditional narrative. In particular, we discuss the structure one would expect to observe if the nondelegation doctrine were part of a constitutional revolution. We then present findings from our database of nondelegation cases to show that the doctrine does not fit this structure. Unlike the constitutional principles underlying dual federalism and economic substantive due process, the pattern of litigation surrounding the nondelegation doctrine was not affected by the New Deal revolution. Finally, in Part III, we detail the types of nondelegation challenges that have arisen and been successful over the past eighty years.

1. THE LIFE AND DEATH OF THE NONDELEGATION DOCTRINE

   Read any article on the subject, and you will hear the same story: throughout the nineteenth and early twentieth centuries, courts aggressively invoked the nondelegation doctrine to rein in excessive governmental expansion. (4) Then, following the New Deal, the doctrine lost its luster and was relegated to the constitutional dustbin. (5) In this Part, we briefly recap the false story of the doctrine's life and then shift focus to the mythology of its death.

   1. The Doctrine's Life

      In The Myth of the Nondelegation Doctrine, we examined state and federal nondelegation challenges between 1789 and 1940. (6) What we found was surprising. Contrary to accepted wisdom, this period was not marked by vigorous enforcement of the nondelegation doctrine. Instead, pragmatic considerations dominated the era. (7) 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. (8)

      Despite this seemingly stringent hurdle, some nondelegation challenges were successful. In fact, seventeen percent of all nondelegation cases between 1789 and 1940 resulted in the invalidation of a state or federal statute. (9) Although this success rate may seem impressive, the actual cases suggest that the nondelegation doctrine was not an overly restrictive constraint. As we showed in our previous article, the legislative delegations that were invalidated during this period generally conferred substantial discretion on the delegate. (10) Consider the following two cases that are representative of successful nondelegation challenges of the time.

      In Marr v. Enloe, the Tennessee Supreme Court reviewed a statute that granted unbridled taxing power to the county courts. (11) In the challenged law, the legislature failed to specify the rate of taxation or the distribution of taxes upon different forms of property. (12) The only instruction to the courts was that they should assess taxes sufficient "to meet the current expenses of their county for the ensuing year." (13) Alarmed by the scope of the delegation, the Tennessee Supreme Court asked:

      [W]hat limit to exactions is imposed by the act... ? We answer, none. [The courts] may tax every acre in their respective counties to its full value, and if the tax is not paid, cause the land to be sold and bought in by the sheriff... if there be no other bidders. (14) Due to the complete discretion allotted to the county judges, the court found this statute to be an unconstitutional delegation of legislative power. (15)

      Another representative case is State v. Field. (16) This nondelegation challenge centered on a Missouri statute that governed the maintenance of roads. Of particular concern was a provision that gave county courts authority to suspend the operation of the law. (17) Finding this portion of the statute to be an unconstitutional delegation of legislative authority, the Missouri Supreme Court held that "[i]t appears impossible to doubt, that the power which has been exercised by the court... and which has the effect of determining what law shall be in force in the tribunals of the state... is a part of the legislative power which cannot be entrusted to the county courts." (18)

      We offer these cases as illustrations of the types of delegations that were invalidated in the pre--New Deal era. If the same delegations were to occur today, modern courts would invariably declare them unconstitutional. As we concluded before: "If anything about the nondelegation doctrine's history is surprising, it is that legislatures once thought it appropriate to delegate such expansive powers, not that courts saw fit to strike them down." (19)

      Contrary to the prevailing narrative, the nondelegation doctrine was not an overly restrictive check on legislative delegations of power during the nineteenth and early twentieth centuries. In reality, the courts adopted a pragmatic approach. If the delegation was necessary to advance a governmental interest and did not substantially undermine the system of checks and balances, then the delegation would withstand constitutional scrutiny. If, however, the statute granted near absolute discretion to the delegate or shielded the legislature from electoral accountability, then it would not withstand judicial review.

   2. The Doctrine's Death

      In one of the critical cases in the battle between the U.S. Supreme Court and President Franklin D. Roosevelt, the progressive Justice Benjamin Cardozo shocked the administration by joining his conservative colleagues on the Court in striking down the National Industrial Recovery Act, a centerpiece of the first New Deal. (20) This scheme, which granted boards composed of private actors and government officials the power to develop legally binding industrial codes, was--even Justice Cardozo thought--"delegation running riot." (21) According to conventional wisdom, this case (A.L.A. Schechter Poultry Corp.) and Panama Refining Co. (22)--both decided in 1935--marked the high point of the nondelegation doctrine. A mere two years later, the story goes, the doctrine no longer stood as an obstacle to legislative...