McCue on Originalism and Criminal Delegations

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:

Originalist proponents of the nondelegation doctrine often identify criminal lawmaking delegations as a unique area for concern. But despite this emphasis on the special nature of criminal delegations, no scholar has yet analyzed these “administrative crimes” from an originalist perspective. This Article continues the recent trend in scholarship reviewing the historical record for evidence of a nondelegation doctrine at the Founding. However, I adopt a unique approach in cabining this inquiry to the specific area of criminal law. While scholars may divide on the overarching nondelegation question, I argue that there exists evidence to support an originalist case against some types of criminal delegations.

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.