• Video

Non-Delegation Doctrine and the New Deal

Professor Gary Lawson discusses a prime example of the non-delegation doctrine. President Roosevelt’s New Deal included the National Industrial Recovery Act. This Act allowed the President to personally approve, or discard, codes of conduct for all operating businesses. When portions of the Act were challenged, the Supreme Court ruled that Congress could not delegate these legislative powers to the President. According to Professor Lawson, this was the first and only time the Court has ever enforced the non-delegation doctrine. https://youtube.com/watch?v=jDiWlPBu77Y


The centerpiece of the New Deal, was something called the National Industrial Recovery Act. To put it very crudely, the National Industrial Recovery Act made Franklin Roosevelt economic dictator of the United States. It allowed cartels of industries to draw up codes of conduct that would be legally binding on themselves, and all of their competitors. Those would be submitted to the President for approval. The President could approve them, could amend them, could scrap them, and write his own code of conduct. Those codes of conduct would function as law for all of the businesses in those industries throughout the United States. The jurisdiction under the statute extended in principle to all businesses. What were the criteria that the President was supposed to use in approving or writing these codes of conduct? Well, there was a provision in the statute that listed all of the things that the President was supposed to be looking to. It's essentially every good, nice, wonderful thing you could possibly imagine, even when they were wildly in conflict. Promote industrial development, but beware of environmental concerns. Promote labor, but beware of costs. It's essentially an instruction to the President to promote goodness, niceness, and whatever other thing we can think of. That was too much for the Supreme Court. The Supreme Court actually found that, that statute delegated to the President some portion of the legislative power. Two aspects of that statute in two separate cases were found to violate the nondelegation doctrine. For the first time the nation's history in 1935, the Supreme Court not only announced a sub-delegation principle, but enforced it. They did not, in either of those two cases, actually articulate how the lines were drawn. They just looked at this statute, and said, "Oh, come on, whatever the lines are, this is completely gone.” That is the last time that the Supreme Court of the United States found that anything done by Congress was an unconstitutional sub-delegation of legislative authority.

Related Content