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

Constraining Criminal Laws

This Article challenges the modern statutory interpretation of criminal laws. In doing so, it makes two distinct, but related contributions. First, it demonstrates that courts historically played a significantly more active role in interpreting criminal laws than they currently play. In particular, courts routinely interpreted statutes to reach no further than the text or the purpose, and they treated broadly written laws as ambiguous and in need of narrowing constructions. Put simply, courts used their interpretive powers to deliberately favor criminal defendants and constrain the criminal law. Second, it explains how a more active judiciary would combat some of the pathologies of the modern criminal justice system and protect important constitutional principles. Specifically, if modern courts were to use the historic rules of constraint, they would better protect important constitutional principles such as the separation of powers and democratic accountability. In making these points, the Article does not claim that courts are obliged to take a more active role in interpreting statutes; rather, it claims that courts are allowed to take this more active role and that there are good reasons to do so. In other words, while we do not argue that judges must use their interpretive powers to narrowly construe criminal statutes, we argue that they should. The Article proceeds in three parts. Part I begins by providing an overview of the dominant theories of statutory interpretation, both of which are premised on the idea that courts should act as faithful agents of the legislature when interpreting statutes. It then explains how, with only small exceptions that have little practical consequence, those theories of interpretation treat criminal laws the same as non-criminal laws. Part II demonstrates how these modern theories depart from historical practice in failing to distinguish between criminal and other statutes and by assuming that judges’ main interpretive task is to carry out the will of the legislature. It traces the development of the rules of statutory construction that judges used to constrain the reach of criminal laws, and it describes how these rules were widely accepted by early state and federal courts. Part III explains how, in abandoning their role as an institution that independently constrains the criminal law, modern courts have countenanced a disastrous expansion of the criminal justice system. If courts were to once again embrace their role as an institutional constraint on the scope of criminal law, rather than merely seeking to effectuate legislative will by enforcing the purpose or the text of a criminal statute, they could help curtail some of that expansion and better protect important constitutional values, such as the separation of powers and democratic accountability

Procedural Rights at Sentencing

In determining which constitutional procedural rights apply at sentencing, courts have distinguished between mandatory and discretionary sentencing systems. For mandatory systems—systems that limit sentencing factors and specify particular punishments based on particular facts—defendants enjoy important rights including the right to a jury, the right to proof beyond a reasonable doubt, the right to notice of potential sentencing aggravators, and the right not to be sentenced based on ex post facto laws. By contrast, for discretionary systems—systems that leave the determination of sentencing factors and how much punishment to impose based on particular facts to the judge’s discretion—defendants do not enjoy these protections. This Article challenges this discrepancy. It argues that, given the rationales underlying each of these rights, there is equal reason to apply these rights in discretionary sentencing systems as in mandatory ones. As it explains, procedural rights regulate the means by which facts are found and the manner in which courts use those facts, and consequently are critical to discretionary systems. Just as in mandatory sentencing systems, judges in discretionary systems must make factual findings to determine the appropriate sentence to impose. This Article argues that the various justifications for providing fewer procedures in discretionary schemes are based on misconceptions about the nature of discretion at sentencing and inaccurate historical analysis

Procedural Rights at Sentencing

In determining which constitutional procedural rights apply at sentencing, courts have distinguished between mandatory and discretionary sentencing systems. For mandatory systems—systems that limit sentencing factors and specify particular punishments based on particular facts—defendants enjoy important rights including the right to a jury, the right to proof beyond a reasonable doubt, the right to notice of potential sentencing aggravators, and the right not to be sentenced based on ex post facto laws. By contrast, for discretionary systems—systems that leave the determination of sentencing factors and how much punishment to impose based on particular facts to the judge’s discretion—defendants do not enjoy these protections. This Article challenges this discrepancy. It argues that, given the rationales underlying each of these rights, there is equal reason to apply these rights in discretionary sentencing systems as in mandatory ones. As it explains, procedural rights regulate the means by which facts are found and the manner in which courts use those facts, and consequently are critical to discretionary systems. Just as in mandatory sentencing systems, judges in discretionary systems must make factual findings to determine the appropriate sentence to impose. This Article argues that the various justifications for providing fewer procedures in discretionary schemes are based on misconceptions about the nature of discretion at sentencing and inaccurate historical analysis

Child Pornography Sentencing in the Sixth Circuit

Introduction and Article from the Honorable James J. Gilvary Symposium on Law, Religion, and Social Justic

Federalism Limits on Non-Article III Adjudication

Although Article III of the Constitution vests the federal judicial power in the Article III courts, the Supreme Court has created a patchwork of exceptions permitting non-Article III tribunals to adjudicate various disputes. In doing so, the Court has focused on the separation of powers, concluding that these non-Article III adjudications do not unduly infringe on the judicial power of the Article III courts. But separation of powers is not the only consideration relevant to the lawfulness of non-Article III adjudication. Article I adjudications also implicate federalism. Permitting Article I tribunals threatens the role of state courts by expanding federal judicial power without the constraints of Article III, and Article I tribunals are more likely than state or Article III courts to adjudicate disputes in ways that undermine state interests. This Essay argues that these federalism considerations provide a sounder basis than current doctrine for some of the exceptions to Article III and they suggest ways that the exceptions to Article III should be modified

Federalism Limits on Non-Article III Adjudication

Although Article III of the Constitution vests the federal judicial power in the Article III courts, the Supreme Court has created a patchwork of exceptions permitting non-Article III tribunals to adjudicate various disputes. In doing so, the Court has focused on the separation of powers, concluding that these non-Article III adjudications do not unduly infringe on the judicial power of the Article III courts. But separation of powers is not the only consideration relevant to the lawfulness of non-Article III adjudication. Article I adjudications also implicate federalism. Permitting Article I tribunals threatens the role of state courts by expanding federal judicial power without the constraints of Article III, and Article I tribunals are more likely than state or Article III courts to adjudicate disputes in ways that undermine state interests. This Essay argues that these federalism considerations provide a sounder basis than current doctrine for some of the exceptions to Article III and they suggest ways that the exceptions to Article III should be modified