Criminal Statutes and Nondelegation Doctrine

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Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The Supreme Court has held that only Congress has the power to declare any act or omission a criminal offense.1 This limit derives from the due process and separation of powers principles that no one should be “subjected to a penalty unless the words of the statute plainly impose it.” 2 The Supreme Court has held that Congress must “distinctly” define by statute what violations of the statute’s provisions constitute a criminal offense.3 At the same time, the Court has recognized that Congress may provide that violation of valid administrative regulations authorized by a statute shall be punished as a crime.4

Once Congress has exercised its power to declare certain acts criminal, the Supreme Court has generally upheld Congress’s authority to delegate authority to further define what specific conduct is criminal pursuant to the statutory limits.5 For example, the Supreme Court, in Touby v. United States, upheld a delegation of authority to the Attorney General to classify drugs as “controlled substances” under the Controlled Substances Act.6 The Act prohibits, among other things, any person from knowingly or intentionally manufacturing, distributing a “controlled substance,” and sets forth criminal penalties that vary according to the level of a drug’s classification.7 While acknowledged that its “cases are not entirely clear as to whether more specific guidance [than an ‘intelligible principle'] is in fact required” for delegations that trigger statutorily prescribed criminal penalties, the Court concluded that the Act “passes muster even if greater congressional specificity is required in the criminal context.” 8 The Court determined that the Act “placed multiple specific restrictions on the Attorney General’s discretion to define criminal conduct,” satisfying the “constitutional requirements of the nondelegation doctrine.” 9

The Supreme Court has also upheld the authority delegated to the Attorney General to apply criminal penalties retroactively. The 2019 case of Gundy v. United States centered on the application of registration requirements under the Sex Offender Registration and Notification Act (SORNA) to pre-act offenders.10 Section 20913(d) of SORNA authorizes the Attorney General to “specify the applicability” of the registration requirements “to sex offenders convicted before the enactment” of the Act and to “prescribe rules for the registration of any such sex offenders” and for other offenders unable to comply with the initial registration requirements.11 In his petition to the Supreme Court, Gundy, a convicted sex offender, argued, among other things, that SORNA’s grant of “undirected discretion” to the Attorney General to decide whether to apply the statute to pre-SORNA offenders is an unconstitutional delegation of legislative power to the Executive Branch.

In a plurality opinion written on behalf of four Justices, Justice Elena Kagan concluded that SORNA’s delegation “easily passes constitutional muster” and was “distinctly small-bore” when compared to the other broad delegations the Court has upheld since 1935.12 Justice Kagan read SORNA as requiring the Attorney General to “apply SORNA’s registration requirements as soon as feasible to offenders convicted before the statute’s enactment.” 13 Although the delegation in Section 20913(d) does not refer to a feasibility standard, Justice Kagan relied on the legislative history, definition of “sex offender,” and SORNA’s stated purpose (i.e., to establish a “comprehensive” registration system) as an “appropriate guide” to limit the Attorney General’s discretion.14 The plurality concluded that the Attorney General’s “temporary authority” to delay the application of SORNA’s registration requirements to pre-act offenders due to feasibility concerns “falls well within constitutional bounds.” 15 Providing the fifth vote to affirm Gundy’s conviction, Justice Samuel Alito concurred in the judgment only, declining to join Justice Kagan’s opinion and indicating his willingness to rethink the Supreme Court’s approach to the nondelegation doctrine.16

In his dissent joined by Chief Justice John Roberts and Justice Clarence Thomas, Justice Neil Gorsuch viewed the plain text of the delegation as providing the Attorney General limitless and “vast” discretion and “free rein” to impose (or not) selected registration requirements on pre-act offenders.17 Justice Gorsuch concluded that SORNA’s delegation was an unconstitutional breach of the separation between the legislative and Executive Branches.18 In “a future case with a full panel,” Justice Gorsuch hoped that the Court would recognize that “while Congress can enlist considerable assistance from the Executive Branch in filling up details and finding facts, it may never hand off to the nation’s chief prosecutor the power to write his own criminal code. That ‘is delegation running riot.’” 19

Congress may also delegate authority to prescribe maximum and minimum penalty ranges for criminal sentences. The Court in Mistretta v. United States upheld Congress’s conferral of “significant discretion” on the U.S. Sentencing Commission, an independent agency in the Judicial Branch, to develop and promulgate sentencing guidelines for federal judges.20 These guidelines restricted a judge’s discretion in sentencing criminal defendants by establishing a range of determinate sentences for all categories of federal offenses and defendants.21

The Court concluded that the statute “sets forth more than merely an ‘intelligible principle’ or minimal standards” by “explain[ing] what the Commission should do and how it should do it, and set[ting] out specific directives to govern particular situations.” 22 Although Congress provided standards regarding the developing of the sentencing guidelines, the Court noted that the Commission has significant discretion in making policy judgments when considering the relative severity of different crimes and the weight of the characteristics of offenders, and stated that delegations may carry with them “the need to exercise judgment on matters of policy.” 23 The Court also noted that the statute did not confer authority to create new crimes or to enact a federal death penalty for any offense.24

The Court has confessed that its “cases are not entirely clear as to whether more specific guidance is in fact required” for delegations relating to the imposition of criminal sanctions.25 It is clear, however, that some essence of the power to define crimes and set a range of punishments is not delegable, but must be exercised by Congress. This conclusion derives in part from the time-honored principle that penal statutes are to be strictly construed, and that no one should be “subjected to a penalty unless the words of the statute plainly impose it.” 26 Both Schechter27 and Panama Refining28 —the only two cases in which the Court has invalidated delegations—involved broad delegations of power to “make federal crimes of acts that never had been such before.” 29 Thus, Congress must provide by statute that violation of the statute’s terms—or of valid regulations issued pursuant thereto—shall constitute a crime, and the statute must also specify a permissible range of penalties. Punishment in addition to that authorized in the statute may not be imposed by administrative action.30

However, once Congress has exercised its power to declare certain acts criminal, and has set a range of punishment for violations, authority to flesh out the details may be delegated. Congress may provide that violation of valid administrative regulations shall be punished as a crime.31 For example, the Court has upheld a delegation of authority to classify drugs as “controlled substances,” and thereby to trigger imposition of criminal penalties, set by statute, that vary according to the level of a drug’s classification by the Attorney General.32

Congress may also confer on administrators authority to prescribe criteria for ascertaining an appropriate sentence within the range between the maximum and minimum penalties that are set by statute. The Court upheld Congress’s conferral of “significant discretion” on the Sentencing Commission to set binding sentencing guidelines establishing a range of determinate sentences for all categories of federal offenses and defendants.33 Although the Commission was given significant discretionary authority “to determine the relative severity of federal crimes, . . . assess the relative weight of the offender characteristics listed by Congress, . . . to determine which crimes have been punished too leniently and which too severely, [and] which types of criminals are to be considered similar,” Congress also gave the Commission extensive guidance in the Act, and did not confer authority to create new crimes or to enact a federal death penalty for any offense.34

1: See Sessions v. Dimaya, No. 15-1498, slip op. at 5 (2018) (explaining that the void-for-vagueness doctrine is a “corollary of the separation of powers” that requires “Congress, rather than the executive or judiciary branch, define what conduct is [criminally] sanctionable or what is not” ); Whitman v. United States, 574 U.S. 1003, 1004 (2014) ( “[L]egislatures, not executive officers, define crimes.” ); United States v. Eaton, 144 U.S. 677, 688 (1892) ( “It is necessary that a sufficient statutory authority should exist for declaring any act or omission a criminal offence . . . .” ).
2: Tiffany v. Nat’l Bank of Missouri, 85 U.S. (18 Wall.) 409, 410 (1873). See also United States v. Robel, 389 U.S. 258, 272, 275 (1967) (Brennan, J., concurring) (noting that “indefinite[ ]” delegations “create the danger of overbroad, unauthorized, and arbitrary application of criminal sanctions in an area of [constitutionally] protected freedoms” and such “vague” delegations “are far more serious when liberty and the exercise of fundamental freedoms are at stake” ). The Supreme Court has recognized that the void-for-vagueness doctrine may also serve to limit delegation of authority of criminal matters to other branches of the government. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972) ( “A vague [criminal] law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” ).
3: See Eaton, 144 U.S. at 688 ( “It is necessary that a sufficient statutory authority should exist for declaring any act or omission a criminal offence . . . . If Congress intended to make to an offence [to violate] regulations . . . , it would have done so distinctly, in connection with an enactment [of the statute].” ); In re Kollock, 165 U.S. 526 (1897) ( “[T]he courts of the United States, in determining what constitutes an[ ] offence against the United States, must resort to the statutes of the United States, enacted in pursuance of the Constitution.” ).
4: See United States v. Grimaud, 220 U.S. 506, 519 (1911) (explaining that the Forest Reserve Act clearly provided for punishment for violation of “rules and regulations of the Secretary” ), but see United States v. Eaton, 144 U.S. 677 (1892) (holding the general statutory language authorizing punishment for failure to do what was “required by law” did not authorize criminal punishment for violation of a regulation because the statute did not explicitly provide for criminal sanctions for violations of regulations). Extension of the principle that penal statutes should be strictly construed requires that the prohibited acts be clearly identified in the regulation. M. Kraus & Bros. v. United States, 327 U.S. 614, 621 (1946). See also L. P. Steuart & Bro. v. Bowles, 322 U.S. 398, 404 (1944) ( “[I]t is for Congress to prescribe the penalties for the laws which it writes. It would transcend both the judicial and the administrative function to make additions to those which Congress has placed behind a statute.” ).
5: Loving v. United States, 517 U.S. 748, 768 (1996) ( “There is no absolute rule . . . against Congress’s delegation of authority to define criminal punishments. We have upheld delegations whereby the Executive or an independent agency defines by regulation what conduct will be criminal, so long as Congress makes the violation of regulations a criminal offense and fixes the punishment, and the regulations ‘confin[e] themselves within the field covered by the statute.’” ) (quoting Grimaud, 220 U.S. at 518).
6: Touby v. United States, 500 U.S. 160, 165–69 (1991).
7: 21 U.S.C. § 841(a)–(b).
8: Touby, 500 U.S. at 166.
9: Id. at 165–67.
10: No. 17-6086, slip op. (2019).
11: 34 U.S.C. § 20913(d).
12: Gundy, No. 17-6086, slip op. at 1, 17 (plurality opinion).
13: Id. at 1.
14: Id. at 11–15.
15: Id. at 17–18.
16: Id. at 1 (concurring, Alito, J.).
17: Id. at 3 (Gorsuch, J., dissenting).
18: Id. at 27–33.
19: Id. at 33 (quoting A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 553 (1935) (Cardozo, J., concurring)).
20: Mistretta v. United States, 488 U.S. 361, 371–79 (1989).
21: Id. The Supreme Court in United States v. Booker held that the mandatory nature of the sentencing guidelines violated the Sixth Amendment. 543 U.S. 220, 246–46 (2005). The Court severed the mandatory provision to make the sentencing guidelines advisory. Id.
22: Id. at 379.
23: Id. at 378.
24: Id. at 377–78. “As for every other offense within the Commission’s jurisdiction, the Commission could include the death penalty within the guidelines only if that punishment was authorized in the first instance by Congress and only if such inclusion comported with the substantial guidance Congress gave the Commission in fulfilling its assignments.” Id. at 378 n.11.
25: Touby v. United States, 500 U.S. 160, 166 (1991).
26: Tiffany v. Nat’l Bank of Mo., 85 U.S. (18 Wall.) 409, 410 (1873).
27: A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
28: Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).
29: Fahey v. Mallonee, 332 U.S. 245, 249 (1947).
30: L. P. Steuart & Bro. v. Bowles, 322 U.S. 398, 404 (1944) ( “[I]t is for Congress to prescribe the penalties for the laws which it writes. It would transcend both the judicial and the administrative function to make additions to those which Congress has placed behind a statute.” ).
31: United States v. Grimaud, 220 U.S. 506 (1911). The Forest Reserve Act at issue in Grimaud clearly provided for punishment for violation of “rules and regulations of the Secretary.” The Court in Grimaud distinguished United States v. Eaton, 144 U.S. 677 (1892), which had held that authority to punish for violation of a regulation was lacking in more general language authorizing punishment for failure to do what was “required by law.” 220 U.S. at 519. Extension of the principle that penal statutes should be strictly construed requires that the prohibited acts be clearly identified in the regulation. M. Kraus & Bros. v. United States, 327 U.S. 614, 621 (1946). The Court summarized these cases in Loving v. United States, 517 U.S. 748 (1996), drawing the conclusion that “there is no absolute rule . . . against Congress’s delegation of authority to define criminal punishments.”
32: Touby v. United States, 500 U.S. 160 (1991).
33: Mistretta v. United States, 488 U.S. 361 (1989).
34: Id. at 377–78. “As for every other offense within the Commission’s jurisdiction, the Commission could include the death penalty within the guidelines only if that punishment was authorized in the first instance by Congress and only if such inclusion comported with the substantial guidance Congress gave the Commission in fulfilling its assignments.” Id. at 378 n.11.