Not Dead Yet—Or Never Born? The Reality of the Nondelegation Doctrine

Abstract

Until recently, scholarship has concluded that the nondelegation doctrine limited delegations of power to administrative agencies until a shift that occurred in the early twentieth century. Recent revisionist scholarship has challenged that claim, often by noting that courts rarely invalidated statutes on nondelegation grounds. We challenge the revisionist view by examining the importance of the doctrine in early American legislative debates, in early state and federal cases that applied the nondelegation doctrine (even if they upheld the statutes in question), and by showing that leading legal scholars during the early twentieth century believed, contrary to the revisionists, that the doctrine was a powerful obstacle to legislative delegations to administrative agencies.

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