Nondelegation and Criminal Law

60 Pages Posted: 16 Apr 2020

See all articles by F. Andrew Hessick

F. Andrew Hessick

University of North Carolina School of Law

Carissa Byrne Hessick

University of North Carolina School of Law

Date Written: March 11, 2020

Abstract

Although the Constitution confers the legislative power on Congress, Congress does not make most laws. Instead, Congress delegates the power to make laws to administrative agencies. The Supreme Court has adopted a permissive stance towards these delegations, placing essentially no limits on Congress’s ability to delegate lawmaking power to agencies.

This past Term, in Gundy v. United States, the Court relied on this unrestrictive doctrine to uphold a statute delegating the power to write criminal laws. In doing so, the Court did not address whether greater restrictions should apply to delegations involving criminal law. Instead, it applied the same permissive test that it uses to evaluate other types of delegations.

This Article argues that criminal delegations should be treated differently. A number of legal doctrines distinguish criminal laws from other laws. Examples include the vagueness doctrine, the rule of lenity, and the prohibition on criminal common law. The principles underlying these exceptional doctrines equally support tighter restrictions on criminal delegations. Moreover, the justifications in favor of permitting delegations apply more weakly to criminal laws. Accordingly, this Article proposes that criminal law delegations be subject to greater restrictions than other delegations.

Keywords: Administrative Law, Criminal Law, Delegation, Nondelegation, Article I, agencies, Supreme Court

Suggested Citation

Hessick, F. Andrew and Hessick, Carissa Byrne, Nondelegation and Criminal Law (March 11, 2020). Virginia Law Review, Vol. 107, 2020 Forthcoming, UNC Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=3552847

F. Andrew Hessick (Contact Author)

University of North Carolina School of Law ( email )

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

Carissa Byrne Hessick

University of North Carolina School of Law ( email )

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

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