The nondelegation doctrine says that a statute can give rulemaking power to an agency so long as the statute contains an intelligible principle directing how that power must be used. For years, the doctrine was a joke.  Courts routinely upheld laws with the slimmest of intelligible principles, and sometimes they even read intelligible principles into laws that didn’t have them. 

But the winds shifted last Term.  In Gundy v. United States, the Court upheld a delegation in the Sex Offender Registration and Notification Act that empowered the Attorney General to promulgate regulations extending the Act’s criminal provisions to particular offenders. Although the Court upheld the delegation, it did so in a way that reopened the door to nondelegation attacks.   Only eight justices participated in the decision. (Justice Kavanaugh hadn’t yet joined the Court when Gundy was heard.)  A plurality of four justices applied the intelligible principle doctrine and concluded that SORNA had enough of a principle to survive the attack.  Three justices dissented, arguing that the Court should scrap the intelligible principle doctrine and drastically limit delegations to agencies.  The deciding fifth vote was Justice Alito, who concurred in the judgment.  He said that he was interested in revisiting the nondelegation doctrine but would wait until a future case when the full cohort of nine justices could participate.  Several weeks later, in a dissent from denial of cert. in another case, Justice Kavanaugh indicated he also was interested in revisiting the doctrine.   The upshot of these opinions is that a majority of the Court has signaled interest in reconsidering the nondelegation doctrine.

That’s a big deal.  Many administrative law doctrines potentially become obsolete under a powerful nondelegation doctrine.  If delegation isn’t allowed, then we don’t have to ask whether a rule is arbitrary and capricious, or whether an agency’s interpretation of a law in a rulemaking is entitled to Chevron deference.  A prohibition on the delegation means the agency can’t make rules, fullstop. Gundy has already spawned some interesting scholarship, and no doubt we will see more in the coming years. 

One angle that I’ve been exploring with Carissa Hessick is whether the same nondelegation doctrine should apply to criminal delegations like that at issue in Gundy.  None of the opinions in Gundy asked whether Congress’s ability to delegate policy decisions ought to be assessed differently when the power being delegated is the power to determine the scope of criminal laws.  That’s a surprising omission.  Lots of special doctrines apply only to criminal laws.  Examples include the beyond-a-reasonable-doubt standard, the prohibition on ex post facto laws, the void-for-vagueness doctrine, the rule of lenity, and the prohibition on criminal common law. 

Underlying these doctrines of criminal law are concerns about undue threats to liberty, inadequate government accountability, and insufficient notice of legal requirements.  These same concerns motivate the nondelegation doctrine—which suggests that maybe a different nondelegation doctrine should apply when the delegation involves criminal law.

We develop this theory more in an Article that is coming out next year in the Virginia Law Review. It describes previous Court opinions which suggested that criminal delegations ought to be held to a higher standard than non-criminal delegations.  It discusses how the principles behind important criminal law doctrines support a different nondelegation standard for criminal delegations.  And it explains why the reasons that are ordinarily offered in favor of permitting broad delegations do not apply with equal force in the context of criminal laws.

As always, we welcome any comments.  We’d love to engage more on the topic.