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Non-Delegation: Who is Actually Writing Criminal Laws and Defining the Elements of Crimes? More Often Than Not, It Is Not The Elected Legislators

by: Guest Blogger Bruce Harvey

The unfortunate reality is that we do, indeed, live in a regulatory society. There are fifty volumes of the CFR encompassing some 170,000 pages of federal regulations, covering over 90,000 federal regulations just since 1995.[i] Don’t think they don’t apply to the criminal defense bar, because they do – in every area from environmental regulations to designer drugs.[ii] Several prominent examples should bring this home to all of us. First, the Federal Government has been regularly prosecuting licensed medical doctors (and pharmacists) for being “drug dealers in white coats” based primarily on 21 CFR 1306.04 which prohibits doctors from prescribing controlled substances unless it is for a “legitimate medical purpose” that comes within the “usual course” of medical practice. See, e.g.United States v. Azmat, 805 F.3d 1018 (11th Cir. 2015); United States v. Feldman, 936 F.3d 1288 (11th Cir. 2019). So, now the DEA and the executive branch get to determine, in the first instance, whether a licensed medical doctor is “legitimate” or not.

Likewise, it is the State Board of Pharmacy that is delegated to “add substances to or reschedule all substances” listed in the Georgia Controlled Substances Act. O.C.G.A. §16-13-22(a). This is done through the Administrative Procedures Act in Chapter 13 of Title 50 of the Georgia Code. Id. Examples abound.

These regulations have traditionally been viewed as carrying the full force and effect of law. See Chevron USA, Inc. v. Nat. Res. Def. Council, Inc. 467 U.S. 837, 843-44 (1984) (“Chevron”); Chrysler Corp. v. Brown, 441 U.S. 281, 295 (1979). See also PDK Labs, Inc. v. DEA, 438 F.3d 1184, 1185 (DC Cir. 2006). This much is granted. But have recent decisions sounded the death knell for Chevron deference and the revival of the nondelegation doctrine? Let’s examine.

The Constitution confers the legislative power on Congress. See, Article I, Sec. I, and Sec. 8. Thus, according to the Supreme Court, the nondelegation doctrine forbids Congress from delegating its Article I powers to administrative agencies. See Wayman v. Southard, 23 U.S. 1 (1825). However, that principle is observed more in the breach than in the observance. Since 1935, the Court has consistently affirmed the constitutionality of statutes delegating regulatory powers to agencies.[iii] So, the current reality is that although the Constitution confers the power on Congress, Congress does not make most laws. Instead Congress delegates the power to make laws to administrative agencies.[iv] There is then, virtually no limits on Congress’s ability to delegate lawmaking power to agencies.[v] So, why should we raise this now?

Last year the Court revisited the nondelegation principle in a criminal case. A fractured Court ultimately decided both to uphold the delegation and not to modify the current status of the nondelegation doctrine. But, the opinions strongly hinted that the Court will revisit the doctrine in the future. Justice Kagan’s opinion reaffirming the current doctrine garnered only four votes. Justice Gorsuch’s opinion excoriating the current doctrine as unconstitutional had three votes.[vii] Justice Alito’s concurring opinion explicitly indicated his willingness to revisit the doctrine in a future case: “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” Id. at 2131

Justice Kavanaugh did not participate in Gundy. However, in a later case, Paul v. United States, 140 S. Ct. 342 (2019), he wrote separately in a denial of certiorari with the express purpose of noting that, “Justice Gorsuch’s scholarly analysis of the Constitution’s nondelegation doctrine in his Gundy dissent may warrant further consideration in future cases.”

There it is – the necessary missing vote. Gundy is a classic example of how the make-up of the Court – and the extensive analysis of the nondelegation doctrine in Gundy – lead to an uncertain result hinging squarely on “further consideration in future cases”. With all the analysis in Gundy, none of the opinions addressed whether delegation ought to be assessed differently when the scope of the delegation involves the power to determine what is criminal and what is not.[viii]

That omission is striking because there are many reasons to think that the power to delegate is – and should be – different when it comes to criminal law. Indeed, in previous opinions the Court had explicitly acknowledged the possibility that a different test ought to apply to delegation involving criminal laws. SeeTouby v. United States, 500 U.S. 160, 165-166 (1991). See also Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 734 (6th Cir. 2013)(Sutton, J. concurring).

A full discussion of the reasons to treat criminal cases differently is beyond the scope of what we can do in a blog post. But a number of legal doctrines distinguish criminal laws from other laws. Examples include:

The vagueness doctrine: See Dimya, 138 S. Ct. 1204 @1212 (stating that the vagueness doctrine is “a corollary of the separation of powers – requiring that Congress rather than the executive branch or judicial branch define what conduct is sanctionable and what is not”);

The rule of lenity: An adjunct to the vagueness doctrine, statutes that delegate criminal rulemaking authority invariably contain ambiguities. But agencies cannot make policy decisions without discretion. What happens then, is a delegating statute sets out goals through an ambiguous statute and leaves it to the agency to decide the rules to implement the goals.

My concern is this. It has always seemed surreal to combine executive and legislative powers. That is, the same institution both writes and enforces the law. Criminal laws are the means by which the government deprives its citizens of liberty. Obviously, the executive branch has the exclusive power to enforce the criminal laws. Congress can dictate what is illegal through legislation, but it cannot enforce the law. The toothless nondelegation doctrine collapses that constitutional wall and allows the executive branch to both make and enforce the law. This is, and has been, a titanic struggle between individual right and liberty and structural protections. We know what side we are on.

[i] For example, in 2016 Congress passed 214 Public Laws, and agencies implemented 3,853 rules and regulations!

[ii] There are, of course, many lists of bizarre federal crimes, many of which are strict liability offenses. I recently read that it is a federal crime “to make an unreasonable gesture to a passing horse” in a National Park. The Author asks, how does the horse determine the reasonableness of the gesture? See Chase How to Become a Federal Criminal, Atria Books, 2019.

[iii] See Barizai, Delegation and Interpretive Discretion, 133 Harv. L. Rev. 164 (2019).

[iv] Indeed, the delegation may be to a “coordinate Branch[es’]” which, in turn, delegates the Legislative task to an administrative agency. See Mistretta v. United States, 448 U.S. 361, 372 (1989) (upholding the Sentencing Reform Act, which delegated to the Sentencing Commission the authority to set binding sentencing guidelines).

[v] The Court has upheld the constitutionality of such delegations as long as Congress provides an “intelligible principle” that guides the exercise of delegated authority. See Whitman v. AM Trucking Ass’n, 531 U.S. at 457, 473.

[vi] Sex Offender Registration and Notification Act.

[vii] Id. at 2131 (Gorsuch, J., dissenting) joined by CJ Roberts and Justice Thomas.

[viii] See Barkow, Separation of Powers and Criminal Law, 58 Stan L. Rev. 989 (2006) (arguing that other administrative law doctrines should apply differently to criminal laws).