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The Origins of Accommodation: Free Exercise, Disestablishment, and the Legend of Small Government

This Note brings novel historical evidence to bear on the question of whether religious exemptions from neutral, generally applicable laws are compelled by the First Amendment. In the wake of the Supreme Court’s decision in Smith (1990), a robust scholarship on relevant historical practice has emerged on both sides of the issue. Those in favor of religious exemptions argue that history supports their position because (1) the period after ratification was marked by extensive religious freedom and (2) the early United States was characterized by a limited government that stayed in its lane, out of the way of religion.

This Note shows how recently uncovered evidence about the disestablishment regulation of religious institutions, especially the proliferation of the corporate form, undermines both of these propositions. Religious freedom in the period after ratification was sought through government regulation, not through exemption, and early state governments were hardly limited in their invasions into church domain. An accurate history matters here. The Supreme Court’s recent return to history in its Establishment Clause jurisprudence and the addition of Justices committed to constitutional interpretation centered on historical meaning indicate that the history of free exercise during the Founding era may prove decisive the next time that the Court considers the issue of religious exemption.

Introduction

In 1813, Father Anthony Kohlmann, rector of St. Peter’s Church in New York City, found himself between a rock and a hard place.1 1.See generally Walter J. Walsh, The First Free Exercise Case, 73 Geo. Wash. L. Rev. 1 (2004) (recounting the history of Father Kohlmann’s case at length).Show More One of his parishioners, James Keating, had reported a theft of jewelry to the police.2 2.William Sampson, The Catholic Question in America 5 (N.Y., Edward Gillespy 1813).Show More Later, Keating withdrew his complaint after his property was returned.3 3.Id.Show More Keating, out of fear of being arrested, admitted that Father Kohlmann arranged the return of his stolen goods.4 4.Id.Show More Based on other evidence, two immigrants who were members of St. Peter’s were indicted as receivers of the stolen property, and Father Kohlmann was called as a witness to identify those whom he had convinced to return the stolen jewelry.5 5.Id. at 5–6.Show More The priest had a choice: refuse to testify and be jailed, or reveal the names of his penitent parishioners and, in his own words, “become a traitor to my church, to my sacred ministry and to my God.”6 6.Id. at 9; Walsh, supra note 1, at 21.Show More A lower state court found that the choice Father Kohlmann had been put to was untenable. It held that an exemption from the evidentiary requirements of the courtroom was mandated by the New York Constitution’s religious free exercise provision.7 7.SeeSampson, supra note 2, at 108–14.Show More

As the first state court decision to require an exemption on the basis of free exercise,8 8.See Walter J. Walsh, The Priest-Penitent Privilege: An Hibernocentric Essay in Postcolonial Jurisprudence, 80 Ind. L.J. 1037, 1038 n.4 (2005).Show More Father Kohlmann’s case—known as People v. Philips—has become a popular object of study.9 9.See Walsh, supra note 1; Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1410–12 (1990).Show More For those who believe that the Federal Constitution’s Free Exercise Clause requires similar exemptions, Father Kohlmann’s case is evidence that early state practices were consonant with a pro-exemption interpretation of the First Amendment.10 10.Walsh, supra note 1, at 2, 95; McConnell, supra note 9, at 1410–12.Show More Recent scholarship calls the case “the first constitutional victory for religious freedom,” and argues that this lower state court decision belongs “at the historical center of judicial and scholarly free exercise discourse.”11 11.Walsh, supra note 1, at 1–2.Show More That history, according to those in favor of exemptions, was characterized by an “Expansive Conception of Religious Freedom,” one that emerged in the context of a limited American government that stayed in its lane, out of the way of religion.12 12.McConnell, supra note 9, at 1436; see also infra Section II.A (summarizing the pro-exemption view of the historical record).Show More

But the story of Father Kohlmann’s Scylla and Charybdis, and of this rare13 13.McConnell notes that there was little litigation over early religion clauses in either the state or Federal Constitutions. See McConnell, supra note 9, at 1503.Show More early litigation, central to the historical case for free exercise exemptions, has been read in isolation. A fuller assessment of the nature of the religious freedom that New York recognized in 1813 requires considering not only Father Kohlmann’s exemption but also the laws that his church was subject to at the time: onerous and invasive state regulations from which no exemption was sought or given. In 1813, St. Peter’s Church, like others in New York, was governed by a board of trustees.14 14.SeeWalsh, supra note 1, at 21.Show More These lay members of the church were vested with power from the state and controlled church property and decision making.15 15.See Patrick J. Dignan, A History of the Legal Incorporation of Catholic Church Property in the United States, 1784–1932, at 53–54 (1933).Show More As the earliest Catholic Church in New York City, St. Peter’s had elected to incorporate under state law in 1785, just one year after the state extended the power to incorporate to Catholic churches.16 16.See id. at 54.Show More In 1813, the same year that Father Kohlmann won his exemption, the state updated its corporate law governing religious institutions and placed the control of church property, minister salaries, “rules and orders for managing the temporal affairs” of the church, and even the power to break ground in cemeteries firmly in the hands of the majority of lay trustees.17 17.See An Act to Provide for the Incorporation of Religious Societies, ch. 60, §§ 3–4, 8, 2 N.Y. Sess. Laws 212, 214–15, 217 (1813).Show More

In light of the requirements of New York’s corporate law, the Catholic Church which Father Kohlmann led was not only his to control. As Walsh points out, while the district attorney sought to drop the prosecution, it was the church’s lay trustees, not its priest, who insisted that the case be brought to trial, hoping to publicly secure the priest-penitent privilege in New York.18 18.SeeWalsh, supra note 1, at 21.Show More Contrary to Catholic ideology, then, St. Peter’s temporal property and direction were held by the church’s lay trustees, backed and governed by the state’s corporate laws.19 19.See Sarah Barringer Gordon, The First Disestablishment: Limits on Church Power and Property Before the Civil War, 162 U. Pa. L. Rev. 307, 347–50 (2014) (documenting the disruptive quality of disestablishment corporate law for Catholicism in America).Show More These legal mechanisms controlling religious institutions in New York were typical of regulations across the country, most of them passed during the era that Sarah Gordon calls the “First Disestablishment.”20 20.Id. at 307, 311–12. Gordon dates the First Disestablishment as occurring between 1786 and 1833. Id. at 310.Show More Sounding in corporate law, these regulations restricted church property, interfered with internal church governance, and shaped what “religious freedom” meant in New York and in the early United States.21 21.Id. at 321–24.Show More Yet this history has thus far been largely ignored, both by those championing People v. Philips as a high watermark of religious freedom and, more generally, in the fierce debate over the history of the Free Exercise Clause.22 22.See infra Section II.D.Show More This Note refracts that debate through the lens of disestablishment regulation of religious institutions. In doing so, it posits that state interventions into religion during the First Disestablishment undermine the historical case for religious exemptions.

It is important to precisely identify the constitutional issue at play, one that remains hotly contested some 200 years after Father Kohlmann took confession. The question is this: Where a neutral, generally applicable law imposes an incidental burden on an individual’s free exercise of religion, does the Constitution mandate an exemption?23 23.This framing of the issue reflects the Supreme Court’s most recent significant re-appraisal. See Emp. Div. v. Smith, 494 U.S. 872, 883–89 (1990).Show More The center of the exemptions debate thus turns on the standard of judicial review applicable to incidental burdens on religion.24 24.See Douglas Laycock, The Religious Exemption Debate, 11 Rutgers J.L. & Religion 139, 141–42 (2009).Show More Must the government offer merely some form of rational basis to defend a generally applicable law against a claim of exemption, or does the government need to demonstrate that it has a compelling interest and has narrowly tailored the statute at issue?25 25.Compare Smith, 494 U.S. at 879 (asserting that the right to free exercise does not reach a “valid and neutral law of general applicability”), with id.at 894–95 (O’Connor, J., concurring in judgment) (citing precedent that requires the government to justify a substantial burden on free exercise with a “compelling state interest and by means narrowly tailored to achieve that interest”).Show More Those in favor of exemptions argue that the government must do the latter in order to impose incidental burdens on religious free exercise.26 26.See, e.g., Laycock, supra note 24, at 151.Show More Those opposed to exemptions contend that no such showing is required and that neutral and generally applicable laws do not trigger heightened review under the Free Exercise Clause.27 27.See, e.g., Smith, 494 U.S. at 879 (holding that heightened review was not required for a neutral, generally applicable law that imposed an incidental burden on the free exercise of religion); Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev. 915, 936–40 (1992) (arguing that the original understanding and practice under the Free Exercise Clause provides no support for a right to regulatory exemptions).Show More

Since the Supreme Court first encountered the issue of religious exemptions in 1878,28 28.SeeReynolds v. United States, 98 U.S. 145, 166 (1878).Show More the doctrine has evolved between these positions. In contrast to the Court’s Establishment Clause jurisprudence,29 29.Recent Establishment Clause jurisprudence has featured various forms of historical analysis as part of the Court’s decision making. See, e.g., Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2089 (2019) (“The practice begun by the First Congress stands out as an example of respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans. Where categories of monuments, symbols, and practices with a longstanding history follow in that tradition, they are likewise constitutional.”); Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 8–14 (1947) (tracing disestablishment history beginning with immigration from Europe); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 852–62 (1995) (Thomas, J., concurring) (contextualizing Madison’s Memorial and Remonstrance Against Religious Assessments to argue that the Establishment Clause does not require the government to exclude religious adherents from generally available government subsidies); id. at 868–72 (Souter, J., dissenting) (denying Justice Thomas’ characterization of Madison’s letter).Show More the Court has often ruled on free exercise exemption claims without reference to the history of the First Amendment.30 30.See Douglas Laycock, Regulatory Exemptions of Religious Behavior and the Original Understanding of the Establishment Clause, 81 Notre Dame L. Rev. 1793, 1794–95 (2006).Show More However, in the aftermath of Employment Division v. Smith—one of the Court’s most significant and least historically inflected decisions on the issue—a vibrant scholarly debate developed around the history of the Free Exercise Clause, with academics interpreting Founding-era historical sources in order to support their preferred interpretation of the First Amendment.31 31.See infra Part II.Show More Faced with an ambiguous constitutional provision and little legislative history, scholars and Supreme Court Justices have turned to persuasive authority in an attempt to determine whether the Free Exercise Clause at the time of the Founding accorded with, required, or ran against, constitutionally compelled exemptions for religion.

The sources of historical authority relied on in the exemptions debate are numerous, yet recent research on disestablishment regulation of religious institutions has hitherto been ignored. Gordon’s intervention—analyzing state regulation of religious institutions as states removed government support for the church following ratification—casts doubt on two of the premises undergirding the historical case for religious exemptions. Those in favor of constitutionally compelled religious exemptions argue that (1) the period after ratification was marked by an “expansive conception of religious freedom” consonant with constitutionally required exemptions for religious free exercise and (2) the early United States was characterized by a limited government that stayed in its lane, out of the way of religion.32 32.See, e.g., McConnell, supra note 9, at 1415, 1436–49 (advancing both of these positions).Show More The history of disestablishment regulations complicates the first of these arguments because, as Gordon argues, religious freedom during disestablishment was sought through government regulation of the church, not through the exemption of religious institutions from the law.33 33.See infra Part III.Show More The proposition that early American government was “limited” is even more seriously undermined by the history of disestablishment, which demonstrates that early state government relations with the church were characterized by invasive state oversight, especially through corporate laws regulating private property and lay governance.34 34.Id.Show More

This limited intervention does not add to Gordon’s impressive recent work on disestablishment history. Instead, this Note draws out the full significance of that history, by showing how disestablishment regulation unsettles the free exercise exemption debate. Gordon framed her intervention in terms of the relationship between religious institutions and individual conscience.35 35.See Gordon, supra note 19, at 311 (“This first system of disestablishment imposed discipline on religious institutions . . . based on concerns for individual conscience and lay control.”).Show More Yet the story that she uncovered—of religious liberty sought in and through state regulation—is also powerful evidence of the nature of the Free Exercise Clause after ratification. A full account of the history matters for two reasons. On the one hand, disestablishment regulations of religious institutions bear on how we think about the rights of religious individuals and institutions.36 36.See, e.g., Michael W. McConnell, John H. Garvey & Thomas C. Berg, Religion and the Constitution 64 (4th ed. 2016) (a leading textbook on the subject).Show More On the other, this history may well shape the Supreme Court’s future free exercise jurisprudence. The Supreme Court’s recent return to history in its Establishment Clause jurisprudence,37 37.See supra note 29 and accompanying text.Show More and the addition of Justices committed to constitutional interpretation centered on historical meaning,38 38.There is good reason to believe that Justices Gorsuch, Kavanaugh, and Barrett are open to, if not outright supporters of, historical analysis as a supplement to constitutional interpretation. SeeNeil M. Gorsuch, Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia, 66 Case W. L. Rev. 905, 906 (2016) (arguing that judges should seek to apply the law by looking to “text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be”); Tucker Higgins, Read Brett Kavanaugh’s Full Opening Remarks in his Supreme Court Confirmation Hearing, CNBC (Sept. 4, 2018), https://www.cnbc.com/2018/09/04/read-brett-kavanaughs-full-rem­arks-to-the-senate-judiciary-committee.html [https://perma.cc/6QRM-H8K2] (“A judge must interpret statutes as written. A judge must interpret the Constitution as written, informed by history and tradition and precedent.”); Kanter v. Barr, 919 F.3d 437, 453–65 (7th Cir. 2019) (Barrett, J., dissenting) (performing an in-depth historical analysis to conclude that “[h]istory does not support the proposition that felons lose their Second Amendment rights solely because of their status as felons,” but “it does support the proposition that the state can take the right to bear arms away from a category of people that it deems dangerous”).Show More indicate that the history of free exercise during the Founding era may well prove decisive the next time that the Court considers the issue of religious exemptions.39 39.The Supreme Court has granted certiorari and received merits briefs on the question of whether to overrule Smith. As of this Note’s writing, the Court’s opinion has not been released. Petition for Writ of Certiorari at i, Fulton v. City of Philadelphia, 140 S. Ct. 1104 (2020) (No. 19-123); Brief for Petitioners at 37, Fulton, 140 S. Ct. 1104 (No. 19-123); Brief for City Respondents at 47, Fulton, 140 S. Ct. 1104 (No. 19-123); see also Micah Schwartzman, Richard Schragger, & Nelson Tebbe, Symposium: Religious Privilege in Fulton and Beyond, SCOTUSblog (Nov. 2, 2020, 9:29 AM), https://www.scotusblog.com/­2020/11/symposium-religious-privilege-in-fulton-and-beyond/ [https://perma.cc/42ED-WR­NT] (discussing the new conservative majority’s likely path in expanding free exercise rights). And four of the Court’s conservative Justices have signaled an intent to reverse Smith. Kennedy v. Bremerton Sch. Dist., 139 S. Ct. 634, 637 (2019) (Alito, Thomas, Gorsuch, and Kavanaugh, JJ., concurring in denial of certiorari) (signaling an intent to “revisit” Smith); Howard Gillman & Erwin Chermerinsky, The Weaponization of the Free Exercise Clause, Atlantic, (Sept. 18, 2020), https://www.theatlantic.com/ideas/archive/2020/09/weaponization-free-exercise-clause/616373/ [https://perma.cc/3GJZ-EEVN] (arguing that “the conservative justices on the current Court reject Scalia’s reasoning and may be about to overrule Employment Division v. Smith”); Eugene Volokh, Will the Court Read the Free Exercise Clause as Often Mandating Religious Exemptions from Generally Applicable Laws?, Volokh Conspiracy (Jan. 1, 2019), https://reason.com/2019/01/22/will-the-court-read-the-free-exercise-cl/ [https://perma.cc/7LDL-W788] (observing that the statement denying certiorari in Bremerton suggested the four Justices’ willingness to overrule Smith and that Justice Breyer had echoed this sentiment in City of Boerne v. Flores, 521 U.S. 507 (1997)).Show More

The first Part of this Note summarizes the three major phases of free exercise doctrine in the Supreme Court, with particular attention to the Court’s irregular engagement with historical evidence. Second, the extant scholarship on the history of free exercise is summarized, along with its influence in the Supreme Court. The Note’s third Part considers recent research on early state regulations applicable to religious institutions during the First Disestablishment. This Part shows how disestablishment history qualifies claims about expansive religious freedom and “limited” government during the Founding era. This Part also considers three objections to the use of disestablishment history to interpret the meaning of the Constitution’s Free Exercise Clause. The Note concludes by reflecting on the importance of the exemptions issue during the Founding era and today, the stakes of historical analysis for the Supreme Court’s Religion Clauses jurisprudence, and the potential for a historically inflected reappraisal of Free Exercise Clause doctrine.

Vagueness Attacks on Searches and Seizures

Introduction

The void-for-vagueness doctrine promises to promote the rule of law by ensuring that crimes are defined with sufficient definiteness to preclude indefensible and unpredictable applications. But the doctrine fails to fulfill that promise with respect to many low-level crimes. Those crimes are beyond the reach of the vagueness doctrine because they rarely, if ever, serve as the basis for charges in a criminal case that is seriously litigated.1 1.See infra Part II.Show More It is not that these low-level crimes have no use. Police use them all the time to justify stops and arrests, which can lead to searches that uncover evidence of more serious crimes. But when charges are brought for the more serious offenses, vagueness attacks have not been allowed when aimed at the low-level crimes on which the searches and seizures were predicated.2 2.See Michigan v. DeFillippo, 443 U.S. 31, 40 (1979).Show More

The thinking has been that an officer does not violate the Fourth Amendment when making a good-faith search or seizure, supported by adequate individualized suspicion, for a suspected violation of a low-level crime not yet judicially invalidated at the time of arrest. The inquiry is primarily factual in the sense that it concerns only the information available to the officer at the time of arrest. That is, the arresting officer is not expected to speculate or anticipate that the law will be struck down in the future. If the fact of invalidation did not occur before the arrest, it cannot be used to undermine it.3 3.See id. at 37–38.Show More

This rationale has obvious appeal. It makes sense not to expect officers to make legal determinations about the constitutional validity of a law before enforcing it; that task would seem better suited for judges. But application of the rule comes at a significant cost. Many of the low-level offenses used to justify stops and arrests perpetually evade judicial review.

Consider the following scenario: An officer arrests an individual pursuant to a city loitering ordinance that makes it unlawful for a person to refuse to identify himself at an officer’s request. The officer conducts a search incident to arrest, which reveals a gun. The individual is later charged with being a felon in possession of a firearm. If the defendant were to move to suppress the gun on the ground that it was discovered during a search predicated on an ordinance that is unconstitutionally vague, the court would deny the motion without ever addressing the vagueness question; the court would conclude that it need not reach that question because the officer was entitled to rely on the ordinance, which had not been invalidated at the time of arrest. That conclusion leaves the low-level crime just as it was—unreviewed and available for future use by police. The same sequence can and does occur repeatedly, insulating low-level crimes from vagueness challenges.

This Article explores that problem and argues that a solution is hiding in plain sight. It challenges the notion that a defendant may not successfully lodge vagueness attacks on searches and seizures in light of two Supreme Court decisions decided during the same Term—Johnson v. United States4 4.576 U.S. 591 (2015).Show More and Heien v. North Carolina.5 5.574 U.S. 54 (2014).Show More As I will explain, the two cases, especially Heien, lay the groundwork for solving the insulation problem just described.

The defect in many vague statutes is that they are so open-ended that they effectively allow the police to observe conduct, define the content of the crime to cover it, and then make an arrest based on probable cause that the arrestee committed the newly invented crime. That violates due process to the extent it permits officers to enforce a criminal statute in a way that is unexpected and indefensible in light of the text of the law being enforced and any relevant legal sources that bear on that text’s interpretation.6 6.See infra Section I.A.Show More

The Supreme Court’s decision in Heien gives officers enforcing indefinite laws some leeway when applying them. Their interpretations of the laws may be mistaken so long as they are objectively reasonable. This inquiry is purely legal or analytical. The government must be able to point to something in the text of the law or other relevant sources that affirmatively supports the officer’s interpretation; it may not simply note the absence of a judicial decision foreclosing the officer’s view of the law. As Justice Kagan explained in her concurrence in Heien, the government must show that “a reasonable judge could [have] agree[d] with the officer’s view” in light of the relevant legal sources.7 7.Heien, 574 U.S. at 70 (Kagan, J., concurring).Show More

It follows that a mistaken interpretation is unreasonable—and therefore a Fourth Amendment violation—when no reasonable judge could have adopted it in light of the statutory text and available legal materials bearing on the meaning of that text. That is essentially the same claim made when a defendant argues that the law under which he was arrested is unconstitutionally vague—that the law was so open-ended that it permitted an officer to interpret and apply it in a way that was unpredictable and indefensible in light of the law that had been stated at the time. In this way, the framework of Heien opens the door to vagueness attacks on searches and seizures.

The Article proceeds in four Parts. Part I sets the table by describing the content of the vagueness doctrine, the proliferation of low-level crimes that followed the invalidation of vagrancy statutes on vagueness grounds, and the longstanding rule that vagueness attacks may not be lodged successfully against laws serving merely as a basis for arrest. Part II explores the problem that longstanding rule has created, namely that countless low-level offenses are effectively insulated from judicial review on the vagueness question. Part III is the heart of the Article. It argues that Johnson and Heien provide the analytical architecture for successful vagueness attacks on searches and seizures in the context of a motion to suppress. Part IV then identifies potential obstacles to that theory—the prospect of narrowing constructions that cure otherwise vague statutes and the good-faith exception to the exclusionary rule—but argues that they can ultimately be overcome.

The result is a coherent and defensible theory for raising vagueness challenges in the context of a motion to suppress. Again, the primary benefit of this theory is to ensure that even low-level crimes are reviewed for constitutional vagueness. But the theory is broadly applicable. It can be used for vagueness attacks on any crime, low-level or not, on which a search or seizure is premised.

Nondelegation and Criminal Law

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.

Introduction

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 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 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 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 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 votes.5 5.Id.at 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 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 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 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 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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