Hastings Constitutional Law Quarterly


Andrew J. Ziaja


Current scholarship's memory of the nondelegation doctrine's history is neither long nor rich. It rightly recalls that the doctrine has not invalidated a statute since 1936 in Carter v. Carter Coal. Despite having been argued before the Court at least twenty two times from 1813 to 1944 alone, however, the doctrine only ever succeeded in three cases, all of which were challenges to statutory components of Franklin D. Roosevelt's New Deal: Panama Refining v. Ryan in 1935, which is known famously as the "hot oil" case since it involved illicit oil sales, A.L.A. Schechter Poultry Corp. v. United States also in 1935, and Carter v. Carter Coal in 1936. Sparse attention, if any at all, is paid to the cases before and shortly after the Panama-Schechter-Cartert rilogy, excepting reference to United States v. Hampton's "intelligible principle" test. Where the entire jurisprudence is discussed, the predominating narrative has been a linear one: The Court moved from an antiquated, sometimes idealized, rigid separation of powers approach, to a supple one brought about by an acceptance of the complexities of industrial life. The academic focus has been on why the doctrine collapsed rather than on how it came to be in the first place. Both questions merit study. Scholars furthermore point to Yakus v. United States in 1944 as the doctrine's effective end, but the doctrine lost its momentum several years earlier. Scholars have declined, in sum, to consider the entire trajectory of the doctrine from The Cargo of the Brig Aurora in 1813 until Yakus v. United States in 1944. A broadened historical inquiry reflects a doctrine in constant flux.