CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, June 20, 2013

Hessick & Hessick on Booker and Redelegation

F. Andrew Hessick III and Carissa Byrne Hessick (Arizona State University - Sandra Day O'Connor College of Law and Arizona State University (ASU) - Sandra Day O'Connor College of Law) has posted The Non-Redelegation Doctrine (William & Mary Law Review, Vol. 55, No. 1, (Forthcoming 2013)) on SSRN. Here is the 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 Essay argues that, when faced with a decision that implicates a 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, because delegation defines how Congress chooses to perform its core function of setting policy, judicial redelegation raises substantial separation of powers concerns. 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 Essay uses Booker to illustrate the need for the presumption, the presumption would apply equally to the myriad contexts in which Congress delegates its power to make policy and courts have the opportunity to alter that delegation.

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