The Non-Redelegation Doctrine

48 Pages Posted: 12 Jun 2013  

F. Andrew Hessick

University of North Carolina (UNC) at Chapel Hill - School of Law

Carissa Byrne Hessick

University of North Carolina (UNC) at Chapel Hill - School of Law

Date Written: June 11, 2013

Abstract

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.

Keywords: administrative law, federal sentencing, delegation, sentencing commission, separation of powers, non-delegation doctrine

Suggested Citation

Hessick, F. Andrew and Hessick, Carissa Byrne, The Non-Redelegation Doctrine (June 11, 2013). William & Mary Law Review, Vol. 55, No. 1, (2013, Forthcoming). Available at SSRN: https://ssrn.com/abstract=2277717

F. Andrew Hessick

University of North Carolina (UNC) at Chapel Hill - School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

Carissa Byrne Hessick (Contact Author)

University of North Carolina (UNC) at Chapel Hill - School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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