The Non-Delegation Doctrine and the Legislative Predicates of Political Accountability

Abstract

The non-delegation doctrine has been fought over for decades, yet scholars have not examined a foundational question: can judicial doctrine materially shape legislative drafting practices? Even if a strong non-delegation doctrine provides legislators an incentive to draft narrow statutes, they would have many reasons to persist in broad delegations, and it is not clear whether the doctrinal incentives predominate. Here, I examine the relationship between the non-delegation doctrine and lawmaking behavior at the state level using several novel datasets, including a collection of state session laws between 1990 and 2010, and a comprehensive survey of state non-delegation judicial decisions over the last twenty years. Contrary to the common assumption, I find that the robustness of the non-delegation doctrine appears essentially unrelated to legislative drafting practices. This pattern suggests the limited extent to which judicial doctrine can control legislative practices; it also suggests a revived non-delegation doctrine at the federal level is unlikely to effectuate the hopes of proponents or the fears of opponents.