The non-redelegation doctrine.

• Author: Hessick, F. Andrew
• Position: Introduction through II. Delegation and redelegation of federal sentencing policy, p. 163-190

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. (10) Traditionally, sentencing judges had sweeping discretion to impose a sentence anywhere within the broad statutory range prescribed by Congress. (11) In response to complaints that this broad judicial discretion led to unwarranted disparity in sentencing, Congress created the Sentencing Commission and tasked it with setting sentencing policy by promulgating mandatory sentencing guidelines that limit the sentencing range available to judges in particular cases. (12) By rendering the Guidelines advisory and leaving sentencing to the discretion of district judges, the Booker Court reassigned to the district courts the power to set sentencing policy. (13)

This Article argues that redelegation of this sort is inappropriate. Because the Constitution confers on Congress the power to make policy, when Congress unambiguously delegates policy-making power to a particular agent, only that agent may exercise the delegated power. Unless Congress says otherwise, a court should not redelegate that authority, even when that redelegation would, in the eyes of the court, better achieve Congress's substantive goals. In other words, there ought to be a presumption against redelegation--a non-redelegation doctrine.

The presumption against redelegation rests on two grounds. First, judicial redelegation raises separation of powers concerns. The Constitution empowers Congress to enact policies. A delegation defines how Congress chooses to perform that task; it assigns the policy-making power to an agent instead of exercising the power itself. Redelegation interferes with this basic decision about how Congress chooses to operate. Redelegation may also affect a wide swath of policy decisions. Instead of displacing a single substantive policy decision, redelegation results in the judiciary assigning who has the power to make a whole body of policy. Redelegation potentially constitutes a greater intrusion on congressional authority than other types of judicial review. Second, Congress's decision to delegate policy-making power signifies that Congress has not chosen a particular policy. Instead, Congress leaves it to the agent to define the exact policy objectives. Because each institution has different priorities, expertise, information, and tools at its disposal, the decision of who receives delegated power will inevitably affect the ultimate substantive policy that is adopted. Thus, when Congress delegates to an agent, the content of the substantive policy that is adopted will depend on the identity of that agent.

Using the Sentencing Reform Act and Booker as an illustration, this Article proposes the presumption against redelegation of congressional authority. It proceeds in three parts. Part I provides a brief overview of Congress's authority to delegate. Part II describes how Congress delegated authority over sentencing policy to the U.S. Sentencing Commission, and it explains how the Booker Court redelegated that authority to federal judges. Part III argues for the proposed presumption against redelegation. It begins by explaining how the presumption would operate. It then provides the reasons for the presumption. Using the redelegation in Booker as an example, it explains that the presumption is necessary to protect the separation of powers and that, because the identity of an agent is instrumental to defining the policy generated under a delegation, a court cannot redelegate without changing the policies that are adopted. The Article then offers some concluding thoughts on the broader implications of the proposed presumption, as well as some observations on the effect of the redelegation in Booker.

1. AN OVERVIEW OF DELEGATION

   Article I of the Constitution confers on Congress the power to implement policy through legislation. (14) Congress itself need not develop substantive rules through legislation. Instead, it may delegate responsibility to an agent to develop that policy. (15) Through this delegation, the agent may exercise power that it otherwise lacks. (16) The agent steps in and fulfills the role of Congress in setting policy.

   There are various reasons why Congress may choose to delegate: members of Congress may lack the information or expertise to develop sound policy; they may be unable to agree on what...