Academic journal article William and Mary Law Review

The Non-Redelegation Doctrine

Academic journal article William and Mary Law Review

The Non-Redelegation Doctrine

Article excerpt


In United States v. Booker, the Court remedied a constitutional defect in the federal sentencing scheme by rendering advisory the then-binding sentencing guidelines promulgated by the U.S. Sentencing Commission. One important but overlooked consequence of this decision is that it redelegated the power to set sentencing policy from the Sentencing Commission to federal judges. District courts now may sentence based on their own policy views instead of being bound by the policy determinations rendered by the Commission.

This Article argues that, when faced with a decision that implicates an unambiguous delegation, the courts should not redelegate unless authorized by Congress to do so. The proposed non-redelegation doctrine rests on both constitutional and practical grounds. Constitutionally, judicial redelegation raises substantial separation of powers concerns because delegation defines how Congress chooses to perform, its core function of setting policy. Practically, judicial redelegation is bound to affect the substantive policies that are adopted because the policies that the agent adopts depend on the agent's unique characteristics and preferences. Although this Article uses Booker to illustrate the need for the presumption, the presumption could apply to other contexts in which Congress delegates its power to make policy and courts have the opportunity to alter that delegation.


    A. Delegation to the Sentencing Commission
    B. Booker as Redelegation
    A. Defining the Presumption Against Redelegation
    B. Reasons Supporting the Presumption Against
       1. Separation of Powers
       2. The Effects of Delegation on Substantive Policy
          a. Institutional Priorities
          b. Expertise and Access to Information
          c. Regulatory Tools
          d. Organizational Structure


In the landmark case United States v. Booker, the Supreme Court rendered the then-binding United States Sentencing Guidelines merely advisory. (1) Before Booker, the Sentencing Reform Act of 1984 generally required judges to impose sentences within narrow ranges prescribed by the United States Sentencing Commission. Those ranges were determined by factual findings that the sentencing judge made during a sentencing hearing. The Booker Court concluded that this mandatory guidelines scheme violated the Sixth Amendment right to a jury trial. It explained that the Sixth Amendment requires that any fact that increases the maximum possible punishment be found by a jury beyond a reasonable doubt. (2) Because a judge could increase the applicable guideline range by finding facts by a preponderance of the evidence, the Court held that the mandatory guidelines scheme was unconstitutional. (3) The Court chose to remedy this constitutional violation by excising 18 U.S.C. [section] 3553(b), the statutory provision requiring sentencing judges to follow the Guidelines. (4) According to the Court, this remedy best achieved Congress's goal of reducing disparity in sentencing. (5)

Booker wrought a dramatic change in sentencing law. Commentators have criticized the decision on a number of grounds, including that the Court erred in concluding that the mandatory guidelines scheme violated the Constitution, (6) that the remedy the Court chose--rendering the Guidelines advisory--did not match up to the violation, (7) and that the decision created unnecessary legal uncertainty because it left important questions unanswered. (8)

One critical point overlooked by this scholarship is that Booker's remedy redelegated to the district courts power that Congress had assigned to the Sentencing Commission. (9) Congress created the mandatory guidelines scheme to confine judicial discretion at sentencing. …

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