The Non-Redelegation Doctrine
F. Andrew Hessick III
Arizona State University - Sandra Day O'Connor College of Law
Carissa Byrne Hessick
University of Utah - S.J. Quinney College of Law
June 11, 2013
William & Mary Law Review, Vol. 55, No. 1, (2013, Forthcoming)
In United States v. Booker, the Court remedied a constitutional defect in the federal sentencing scheme by rendering advisory the then-binding sentencing guidelines promulgated by the U.S. Sentencing Commission. One important but overlooked consequence of this decision is that it redelegated the power to set sentencing policy from the Sentencing Commission to federal judges. District courts now may sentence based on their own policy views instead of being bound by the policy determinations rendered by the Commission.
This Essay argues that, when faced with a decision that implicates a delegation, the courts should not redelegate unless authorized by Congress to do so. The proposed non-redelegation doctrine rests on both constitutional and practical grounds. Constitutionally, because delegation defines how Congress chooses to perform its core function of setting policy, judicial redelegation raises substantial separation of powers concerns. Practically, judicial redelegation is bound to affect the substantive policies that are adopted because the policies that the agent adopts depend on the agent’s unique characteristics and preferences. Although this Essay uses Booker to illustrate the need for the presumption, the presumption would apply equally to the myriad contexts in which Congress delegates its power to make policy and courts have the opportunity to alter that delegation.
Number of Pages in PDF File: 48
Keywords: administrative law, federal sentencing, delegation, sentencing commission, separation of powers, non-delegation doctrineAccepted Paper Series
Date posted: June 12, 2013
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