Saturday, December 22, 2018

The Nondelegation Doctrine -- Correcting a Common Error

Mark Tushnet

I just read yet another article asserting that the Supreme Court invoked the nondelegation doctrine to hold a federal statute unconstitutional only twice, in Panama Refining v. Ryan and Schechter Poultry. (Cass Sunstein's formulation, that the doctrine had one -- and only one -- good year, 1935, is a clever version of the assertion.)

It's not true. Carter v. Carter Coal Co., decided in 1936, held the Bituminous Coal Conservation Act unconstitutional on several grounds, one of which was the nondelegation doctrine.

Here's the language: "That subdivision delegates the power to fix maximum hours of labor to a part of the producers and the miners.... The power conferred upon the majority is, in effect, the power to regulate the affairs of an unwilling minority. This is legislative delegation in its most obnoxious form.... The delegation is so clearly arbitrary, and so clearly a denial of rights safeguarded by the due process clause of the Fifth Amendment, that it is unnecessary to do more than refer to decisions of this court which foreclose the question. Schechter...."

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