Nondelegation and Criminal Law

Article — Volume 107, Issue 2

107 Va. L. Rev. 281
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*F. Andrew Hessick is the Judge John J. Parker Distinguished Professor of Law, University of North Carolina School of Law. Carissa Byrne Hessick is the Anne Shea Ransdell and William Garland “Buck” Ransdell, Jr. Distinguished Professor of Law, University of North Carolina School of Law. We would like to thank Brenner Fissell, Wayne Logan, Richard Meyers, Rick Su, Kathleen Thomas, and Chris Walker for their helpful feedback on earlier drafts. This Article also benefitted from comments by the participants and attendees at the conference Congress and the Administrative State: Delegation, Nondelegation, and Un-Delegation, which was hosted by the C. Boyden Gray Center for the Study of the Administrative State in February 2019. Maximo Larkin provided valuable research assistance. Show More

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.

In its recent decision, 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 less forcefully to criminal laws. Accordingly, this Article proposes that criminal law delegations be subject to greater restrictions than other delegations.


According to the Supreme Court, the nondelegation doctrine forbids Congress from delegating its Article I legislative power to administrative agencies. But the doctrine has more bark than bite. Since 1935, the Supreme Court has consistently affirmed the constitutionality of statutes delegating regulatory power to agencies.1.Gundy v. United States, 139 S. Ct. 2116, 2129 (2019) (“Only twice in this country’s history (and that in a single year) have we found a delegation excessive . . . .” (citing A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Pan. Refin. Co. v. Ryan, 293 U.S. 388 (1935))); Aditya Bamzai, Comment, Delegation and Interpretive Discretion: Gundy, Kisor, and the Formation and Future of Administrative Law, 133 Harv. L. Rev. 164, 165 (2019) (“[S]ave for two exceptions, both of which occurred in 1935[, the Court] has not used the nondelegation doctrine to find a statute unconstitutional.”).Show More These decisions have spawned many critics who have argued against broad delegations.2.David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation 195–97 (1993); Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 334 (2002) (arguing for a stronger nondelegation doctrine); Jonathan R. Macey, Transaction Costs and the Normative Elements of the Public Choice Model: An Application to Constitutional Theory, 74 Va. L. Rev. 471, 513 (1988) (“Perhaps the greatest departure from the system of government envisioned by the framers is the open-ended delegation of legislative power to administrative agencies that began with the New Deal and continues to this day.”); Sean P. Sullivan, Powers, But How Much Power? Game Theory and the Nondelegation Principle, 104 Va. L. Rev. 1229, 1241 (2018) (calling the doctrine “limp”); Kathryn A. Watts, Rulemaking as Legislating, 103 Geo. L.J. 1003, 1006 (2015) (calling the doctrine “toothless”).Show More

During the October 2018 term, the Supreme Court decided to revisit a particularly important nondelegation question: whether Congress can delegate the power to set the scope of criminal laws. The issue arose in Gundy v. United States, which presented the question of whether the Sex Offender Registration and Notification Act (“SORNA”) unconstitutionally delegated power to the Attorney General to issue regulations about how the Act’s requirements applied to offenders convicted before the Act took effect.3.Gundy v. United States, 138 S. Ct. 1260 (2018) (granting certiorari on one of several questions presented in petition for writ of certiorari).Show More

A fractured Court ultimately decided both to uphold the delegation and not to modify the nondelegation doctrine.4.Gundy, 139 S. Ct. at 2129–30.Show More But the opinions strongly hinted that the Court might revisit the doctrine in the future. Justice Kagan’s opinion reaffirming the current doctrine garnered only four votes. Justice Gorsuch’s opinion excoriating the current doctrine as unconstitutional had three 2131 (Gorsuch, J., dissenting). Chief Justice Roberts and Justice Thomas joined the dissent.Show More And Justice Alito’s concurring opinion explicitly indicated his willingness to revisit the doctrine in a future case.6.Id. at 2131 (Alito, J., concurring in the judgment) (“If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”).Show More Moreover, Justice Kavanaugh, who did not participate in Gundy and could have supplied the crucial fifth vote to refashion the nondelegation doctrine, issued a statement dissenting from the denial of certiorari in a later case, stating that Gorsuch’s Gundy dissent “raised important points that may warrant further consideration in future cases.”7.Paul v. United States, 140 S. Ct. 342 (2019) (mem.). Justice Kavanaugh went out of his way to make this statement, writing separately in a denial of certiorari for the express purpose of noting that “Justice Gorsuch’s scholarly analysis of the Constitution’s nondelegation doctrine in his Gundy dissent may warrant further consideration in future cases.” Id. at 342.Show More

The opinions in Gundy featured extensive analysis of the nondelegation doctrine—its origins, its application, and its wisdom. But something important was missing from those opinions: a discussion of the importance of the criminal consequences flowing from the Attorney General’s regulations. None of the opinions in the case asked whether Congress’s ability to delegate policy decisions ought to be assessed differently when the power being delegated is the power to determine the scope of criminal laws.8.Although he did not address the matter in Gundy, Justice Gorsuch argued that delegation should apply differently to criminal laws when he was on the Tenth Circuit. See United States v. Nichols, 784 F.3d 666, 668–70 (10th Cir. 2015) (Gorsuch, J., dissenting from denial of rehearing en banc).Show More

This omission is striking because there are many reasons to think that the power to delegate is different when it comes to criminal laws.9.Scholarship on the nondelegation doctrine is vast. See, e.g., Lisa Schultz Bressman, Schechter Poultry at the Millennium: A Delegation Doctrine for the Administrative State, 109 Yale L.J. 1399, 1402, 1415–31 (2000) (suggesting a theory of nondelegation in which procedural protections advance normative concerns about rule of law and accountability); Lawson, supranote 2, at 345–51 (arguing that the text of Article I of the Constitution constitutes a limitation on the delegation of the legislative power by Congress); Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. Chi. L. Rev. 1721 (2002) (arguing that nondelegation doctrine is no longer enforced; Sullivan, supranote 2 (using game theory to evaluate the nondelegation doctrine). A smaller, but still significant, body of scholarship addresses the interaction of the doctrine with criminal law. See Harlan S. Abrahams & John R. Snowden, Separation of Powers and Administrative Crimes: A Study of Irreconcilables, 1 S. Ill. U. L.J.1, 9, 37–39 (1976) (arguing that the power to make crimes is a core function of the legislature and thus cannot be delegated); Brenner M. Fissell, When Agencies Make Criminal Law, 10 U.C. Irvine L. Rev. 855, 880–906 (2020) (arguing that criminal delegations are inconsistent with the political theories of punishment); Darrell A. Fruth, Touby or Not Touby: The Constitutional Question When Congress Authorizes State and Local Governments to Legislate the Contours of Federal Criminal Law, 44 Env’t L. Rep. 10072, 10074 (2014) (arguing that many criminal delegations would fail a heightened intelligible principle test); A.J. Kritikos, Resuscitating the Non-Delegation Doctrine: A Compromise and an Experiment, 82 Mo. L. Rev.441, 477–80 (2017) (arguing that the federal nondelegation doctrine should follow Florida’s doctrine in criminal cases); Wayne A. Logan, Criminal Justice Federalism and National Sex Offender Policy, 6 Ohio St. J. Crim. L. 51, 115 n.367 (2008) (expressing reservations about the delegation in the Adam Walsh Act because “the policy matters in question have unique normative importance affecting the liberty of individual citizens, but they also lack the technical complexity that typically justifies delegation based on agency expertise, not to mention the need for insulation from undue political influence (such as with environmental regulations)”); Logan Sawyer,Grazing, Grimaud, and Gifford Pinchot: How the Forest Service Overcame the Classical Nondelegation Doctrine to Establish Administrative Crimes, 24 J.L. & Pol. 169, 171–99 (2008) (describing the central role that the nondelegation doctrine played in the emergence of administrative crimes); Edmund H. Schwenk, The Administrative Crime, Its Creation and Punishment by Administrative Agencies, 42 Mich. L. Rev. 51, 54 (1943) (arguing that criminal delegations raise no special concerns and therefore should be permitted); Mark D. Alexander, Note, Increased Judicial Scrutiny for the Administrative Crime, 77 Cornell L. Rev. 612 (1992) (arguing that judges ought to review criminal delegations de novo in criminal cases). But none of this scholarship has addressed specifically how the principles underlying the nondelegation doctrine apply to criminal laws. For an argument that other administrative law doctrines should apply differently to criminal law, see Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989, 1034–50 (2006).Show More Indeed, in previous opinions, the Court had explicitly acknowledged the possibility that a different test ought to apply to delegations involving criminal laws.10 10.E.g., Touby v. United States, 500 U.S. 160, 165–66 (1991); see also Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 734 (6th Cir. 2013) (Sutton, J., concurring) (observing that the Court had not resolved whether a higher standard applies to criminal delegations).Show More And both parties devoted significant portions of their briefs to the topic.11 11.See Brief for Petitioner at 17–23, Gundy v. United States, No. 17-6086 (2018), 2018 WL 2441585, at *17–23; Brief for the United States at 44–53, Gundy, No. 17-6086, 2018 WL 3727086, at *44–53.Show More But none of the justices in Gundy grappled with those issues.

This Article takes up the task of evaluating the issues that the Justices failed to address. It concludes that Congress’s authority to delegate the writing of criminal laws should be more circumscribed than its power to delegate the writing of other laws. It arrives at this conclusion because criminal laws are generally subject to greater restrictions, because the reasons against delegation have more force in the context of criminal laws, and because the standard justifications for delegations to agencies do not support—or at best only weakly support—delegations in the criminal context.

Since 1812, the Supreme Court has maintained that the defining of crimes and fixing of punishments are the sole province of Congress.12 12.United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 34 (1812).Show More It also has long required Congress to speak more precisely when enacting criminal laws, employing the rule of lenity to interpret statutes in favor of defendants and striking down vague laws for violating the Due Process Clause.13 13.See, e.g., United States v. Bass, 404 U.S. 336 (1971) (using the rule of lenity to overturn a federal firearms conviction); Int’l Harvester Co. of Am. v. Kentucky, 234 U.S. 216 (1914) (striking down Kentucky antitrust laws as impermissibly vague on due process grounds).Show More The Court has justified the prohibition against vague laws, in part, as a way to protect individual rights. But it has also said that this prohibition serves the structural purpose of ensuring that Congress, rather than the courts or the executive, defines criminal conduct.14 14.See Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme Court, Revisited, 30 Am. J. Crim. L. 279, 284–86 & nn.43–54 (2003) (collecting cases); Carissa Byrne Hessick, Vagueness Principles, 48 Ariz. St. L.J. 1137, 1143–45 & nn.31–42 (2016) (collecting articles).Show More These foundational principles weigh heavily against permitting broad delegations of the power to write criminal rules.

Those principles also reveal a deep tension between the nondelegation doctrine and criminal law doctrines, including the constitutional prohibition against vague laws. The prevailing justification for delegations of the power to write rules is that the “law” is the delegating statute, not the regulations themselves.15 15.SeeWhitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001); see also Watts, supranote 2, at 1005 (discussing this theory).Show More But if it is the statute that we must treat as law, rather than the agency’s regulations, then the statute itself must satisfy the vagueness doctrine. This is significant because many statutes that delegate criminal rulemaking authority do not satisfy the vagueness test. They offer virtually no guidance on what is illegal; instead, they provide only the loosest set of considerations that an agency must weigh in later declaring what is illegal. Put differently, the statutes do not specify what is illegal; they say only that an agency will later state what is illegal. This incompatibility between the prevailing justification for modern nondelegation doctrine and the vagueness doctrine is a stark illustration of the fundamental problem with treating criminal delegations no differently than other delegations.

In short, criminal law delegations are different from other delegations. They are inconsistent with foundational criminal law doctrine, they present greater threats to the principles underlying the nondelegation doctrine, and they are not supported by the ordinary arguments in favor of delegation. And so we should treat criminal law delegations differently.

The Article proceeds in four parts. Part I describes the current nondelegation doctrine and how that doctrine has been applied in cases involving criminal law. It explains that, while the Supreme Court has often suggested that criminal law delegations ought to receive stricter scrutiny under the nondelegation doctrine, it has not actually struck a delegation down on that ground.

Part II explains why criminal law delegations ought to be viewed differently than non-criminal law delegations. It begins by identifying the ways in which the law treats criminal statutes differently from non-criminal statutes. The Supreme Court has repeatedly held that Congress—rather than the executive or the judiciary—must make the criminal law, and it has placed special restrictions on how criminal laws are interpreted and enforced. Part II then explains that the very same concerns that led to the creation of these different criminal doctrines—namely, undue threats to liberty, inadequate government accountability, and insufficient notice of legal requirements—have been cited by delegation’s critics as a reason to forbid broad congressional delegations. Because the need to protect liberty, ensure accountability, and assure notice are heightened for criminal laws, and because these principles are threatened by broad delegations, the delegation of criminal rulemaking power should be viewed with deep suspicion.

Part II also demonstrates that the reasons that are traditionally offered in support of broad delegations—expertise, promoting compromise, and efficiency—are far less convincing when it comes to the enactment of criminal laws. Criminal law questions are largely about moral judgment, which does not turn on technical expertise. And to the extent criminal law raises empirical questions, answering those questions would need to account for many competing costs and benefits across many different areas—requiring a range of expertise that is far broader than what we ordinarily expect from agency officials. Similarly, the ability to compromise and the ability to act efficiently are less pressing in criminal law. Legislators have proven to be far more efficient and cooperative in passing criminal statutes than legislation in other areas.

Part III places the delegation of promulgating criminal laws in context. It acknowledges that some may see criminal law delegations as unexceptional because Congress routinely confers broad discretionary power on law enforcement. In particular, Congress has enacted broad and overlapping criminal statutes. Those enactments leave a large amount of criminal justice policy to prosecutors, who enjoy enormous discretion over which charges to bring. But the policy discretion resulting from those broad and overlapping statutes is not equivalent to the policy power resulting from delegations. The former provides more options to prosecutors in exercising their executive charging power. The latter authorizes the executive to decide what is criminal.

Part IV turns from theory to application. It sketches different ways to implement a stricter nondelegation doctrine for criminal laws that would be consistent with the principles underlying both criminal law and administrative law. It explains that courts could vindicate those principles either by prohibiting all delegations involving criminal law or by adopting a more robust version of the intelligible principle doctrine for statutes that impose criminal penalties. It briefly addresses the benefits and drawbacks of each approach, and it ultimately recommends that, at the least, the Court should use the vagueness doctrine to police criminal law delegations.

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