Defining Crime, Delegating Authority - How Different are Administrative Crimes?
56 Pages Posted: 30 Nov 2020 Last revised: 26 Sep 2021
Date Written: October 17, 2020
As the Supreme Court reconsiders whether Congress can so freely provide for criminal enforcement of agency rules, this Essay assesses the critique of administrative crimes though a Federal Criminal Law lens. And it explores the extent to which this critique carries over to other instances of mostly well-accepted, delegated federal criminal lawmaking - to courts, states, foreign governments, and international institutions. By considering these other delegations through the lens of the administrative crime critique, the Essay destabilizes that critique’s doctrinal foundations. It then suggests that if one really cares, not about the abstract “liberty” said to be protected by the separation of powers, but the lived “liberty” gained through careful and accountable criminal lawmaking, free from the pathologies that have bedeviled federal criminal law for more than a century, then administrative crimes are normatively quite attractive.
Keywords: administrative crimes, regulatory prosecutions, non-delegation doctrine
JEL Classification: K14, K22, K23, K32, K42
Suggested Citation: Suggested Citation