The non-redelegation doctrine.

• Author: Hessick, F. Andrew
• Position: III. The Non-Redelegation Doctrine through Concluding Thoughts, with footnotes, p. 191-219

3. 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. Similar trust does not extend to a court that is not the recipient of the delegation, (160) and increasing the strength of the presumption would reduce the court's ability to manipulate policy through redelegation. (161)

That said, our goal here is not to define precisely what it would take to rebut the presumption to preserve delegations. Instead, our argument is only that the presumption should be rebuttable. At the least, the presumption should be rebutted when Congress provides by statute that a court may redelegate authority if necessary to avoid invalidating a statute.

Applying the presumption to Booker would have changed the Court's approach in its remedial opinion. (162) Nothing in the SRA suggests that Congress meant to allow judicial redelegation. The text of the SRA unambiguously assigns the power over sentencing policy to the Commission by empowering it to promulgate Guidelines (163) and directing courts to follow those Guidelines. (164) The SRA does not contain language suggesting that the judiciary should reassign that function, or assume that role itself, if necessary to preserve the balance of the SRA. Further, other portions of the SRA--such as the exemption of the Guidelines from arbitrary and capricious review (165) and the provision limiting judges to only a minority of the Commission (166)--suggest that Congress meant to limit substantially the judiciary's influence on the policy-making process. The legislative history also confirms that Congress meant to exclude courts from the policy-making process. Among other things, Congress rejected a proposal to make the guidelines merely advisory. (167)

The only provision that arguably gives courts the power to fashion sentencing policy is 18 U.S.C. [section] 3553(b), which authorizes a court to impose "an appropriate sentence" when there is no applicable Guideline. (168) One might argue that, because this provision authorizes courts to impose a sentence in the absence of a Guideline, Congress must have intended to allow courts to have the power to set sentencing policy in the event the Guidelines were rendered advisory. But that argument is not well taken. Read in conjunction with the provisions authorizing the Commission to promulgate Guidelines and requiring the courts to follow the Guidelines, the clear import of the exception in [section] 3553(b) is to allow a court to impose a sentence in the rare instance that the court faces a situation not covered by a Guideline. That is a far cry from granting courts a general power to set sentencing policy. (169)

One might ask, if redelegation were not an option, what other remedy could the Court have adopted? Entirely striking down those portions of the SRA that created the Commission and the Guidelines would arguably result in even more judicial power over sentencing policy than the Booker remedy, (170) which maintains at least some role for the Commission and the Guidelines. (171) But total invalidation was not the only remedial option. Another option--an option supported by four dissenting justices--was to require a jury to find facts resulting in a higher Guidelines range beyond a reasonable doubt. (172) Although a sentencing jury may have had other drawbacks, (173) it would not have resulted in reallocation of sentencing policy authority from the Commission to the courts. (174) Yet another option available to the Court was to strike down those portions of the Guidelines that presented constitutional problems--for example, the provisions directing judges to increase sentences based on particular factual findings--and leave it to the Commission to determine whether it could fashion alternative provisions that did comport with the Constitution. Because other, non-redelegation remedies were available to the Court, it should not have redelegated sentencing policy authority to the federal courts. (175)

B. Reasons Supporting the Presumption Against Redelegation

1. Separation of Powers

   Separation of powers underlies many judicial doctrines and presumptions. (176) The basic idea of the separation of powers is that different bodies hold the power to enact, enforce, and interpret the law. (177) As is well known, the reason for the division of power is the mistrust of government. (178) Placing all power in the hands of one entity risks the abuse of that power. Separating the power of policy enactment from law interpretation and enforcement allows one branch to limit the actions of the others.

   The particular division of power adopted in the Constitution is designed to secure popular sovereignty while preserving the ability to enforce the law impartially. (179) To that end, the Constitution assigns the policy-making power to Congress, (180) which is accountable to the public through periodic elections. (181) This accountability makes legislative policies more likely to reflect the will of the people. At the same time, the Constitution entrusts the power to interpret those laws and enter judgment based on those interpretations to the judiciary, (182) which the Constitution insulates from popular opinion through life tenure and salary guarantees. (183) Although these protections make the courts ill-suited to enact policy, they allow the courts to interpret the laws in an impartial way without fear of popular reprisal. (184) This division of power preserves the ability of the people to control the government and its policies (185) while still allowing the laws to be enforced in an impartial way. (186)

   This arrangement risks, however, that members of the unaccountable judiciary will substitute their policy preferences for those expressed by Congress in a statute. To minimize that risk, the role of the courts is narrowly defined simply to give effect to the policies expressed by Congress in a statute. (187) A court may disregard Congress's policy preferences only when enforcing those preferences would violate the...