The Non-Redelegation Doctrine

By Hessick, F. Andrew; Hessick, Carissa Byrne | William and Mary Law Review, October 2013 | Go to article overview

The Non-Redelegation Doctrine


Hessick, F. Andrew, Hessick, Carissa Byrne, William and Mary Law Review


ABSTRACT

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.

TABLE OF CONTENTS

INTRODUCTION
I. AN OVERVIEW OF DELEGATION
II. DELEGATION AND REDELEGATION OF
    FEDERAL SENTENCING POLICY
    A. Delegation to the Sentencing Commission
    B. Booker as Redelegation
III. THE NON-REDELEGATION DOCTRINE
    A. Defining the Presumption Against Redelegation
    B. Reasons Supporting the Presumption Against
       Redelegation
       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
CONCLUDING THOUGHTS

INTRODUCTION

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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Non-Redelegation Doctrine
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.