Tuesday, September 27, 2022
Michael McCue has posted Modern Times, Hidden Crimes: Criminal Lawmaking Delegations from the Founding to Today (Dartmouth Law Journal (Forthcoming 2023)) on SSRN. Here is the abstract:
I show that, while the Founders expressed negative views towards criminal delegations, there are multiple examples where they delegated discretion to the executive to determine the precise scope of criminal statutes. However, evidence shows that the Founders rejected other criminal delegations. I argue that this mixed historical record can be reconciled into a set of nondelegation principles. I also show that this original approach limiting criminal delegations was abandoned in the early 20th century. I demonstrate that applying these original principles to modern statutes would preserve some kinds of administrative crimes but hold others unconstitutional.