Nondelegation and Criminal Law
46 Pages Posted: 24 Oct 2018
Date Written: October 1, 2018
The nondelegation doctrine prohibits a legislature from delegating its power to an executive entity, yet it is famously underenforced—even when the delegation results in the functional creation of criminal offenses. However, this term the Supreme Court will consider whether the doctrine applies differently in this context. While the value of the nondelegation doctrine more generally has been the subject of extensive scholarly attention, its specific application to criminal law has received very little. This Article helps to fill that gap, and concludes that delegations resulting in criminalization should be unlawful—both at the federal and state levels. Applying the insights of prominent punishment theories, this Article argues that because criminal law must publicly express condemnation from the community, criminal offenses must be created by a democratically elected institution and not a bureaucratically controlled agency. Moreover, because a community will frequently aim to use the condemnatory feature of criminal law to address problems not resolvable by rational expertise, but instead by a majority’s choice of one value over a competing value, expert agencies lack the legitimacy and competence to make such choices.
Keywords: nondelegation, criminal law
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