The Non-Redelegation Doctrine

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III. THE NON-REDELEGATION DOCTRINE

In Booker, the Court redelegated sentencing authority to the district courts in an effort to achieve Congress's substantive sentencing goal of reducing unwarranted disparities in sentencing. (145) This Section challenges that approach. It argues that, when a court interprets a statute containing an unambiguous delegation, the court should adopt a presumption against redelegation. The Section begins by describing how the presumption would work and explaining how the presumption would have affected the decision in Booker. It then provides theoretical and practical reasons for the presumption.

A. Defining the Presumption Against Redelegation

When Congress unambiguously delegates policy-making authority to a particular agent, courts should adopt a presumption in favor of preserving the delegation. (146) Under this presumption, when a statute delegates power to an agent, a court should not redelegate that power unless the statute authorizes the court to do so.

This presumption against judicial redelegation is similar to the traditional rule against redelegation in agency law: delegata potestas non potest delegari. (147) Under this ancient maxim, "a principal can delegate authority to an agent, but the agent cannot delegate the same authority to anyone else unless authorized by the principal to do SO." (148) As Justice Story explained, the principle underlying this maxim is that a delegation of authority by a principal to an agent reflects "an exclusive personal trust and confidence reposed in the particular" agent. (149)

This maxim of agency law appears in the non-delegation doctrine. (150) Because the Constitution does not allow Congress to delegate its legislative power, Congress must provide in a delegation to an agency an intelligible principle to guide the agency in its rulemaking. This principle ensures that the rule is merely setting forth a policy to enforce Congress's will. (151)

The maxim is also the source of what some have termed the "anti-redelegation doctrine"--the rule that, when Congress delegates policy-making authority to an agent, that agent ordinarily cannot redelegate that authority to another entity. (152) For example, when Congress delegates the power to enter into particular types of contracts to the Department of the Army, the Army cannot redelegate that power to the Department of the Interior. (153) Redelegation is allowed only if Congress has authorized the agent to redelegate. (154)

Although the anti-redelegation doctrine is similar to the proposed presumption to preserve delegations, they are not identical. The anti-redelegation doctrine prohibits an agent from redelegating power delegated to it by Congress. (155) By contrast, the proposed presumption prohibits the judiciary from redelegating authority conferred by Congress when seeking to remedy a defective statute.

Like the traditional anti-redelegation presumption, the presumption against judicial redelegation should not be absolute. Because Congress has the power to allocate power, it also has the power to allow the courts to reallocate that power. (156) Thus, even when Congress has unambiguously delegated authority to one agent, the presumption should be rebutted when Congress also authorizes the courts to redelegate.

Saying that the presumption should be rebuttable leaves the question of how strong the presumption should be. Some presumptions are strong and can be rebutted only by an express statutory provision. (157) Others are weaker and may be rebutted by any indication of congressional intent in other statutory provisions or the legislative history. (158) The presumption against judicial redelegation should be strong. It should certainly be stronger than the traditional anti-redelegation presumption because it involves a court redistributing the power instead of the agent itself. (159) When Congress delegates policy making to an agent, it presumably trusts the judgment of the agent in making that policy, including the agent's decision to redelegate to make policy. …