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Abstract

The future of the nondelegation doctrine is clouded with uncertainty. Despite the Supreme Court’s insistence that the nondelegation doctrine is an axiom of constitutional law, the doctrine remains an illusory constraint on Congress. Indeed, almost a century has passed since the Court invalidated a congressional delegation under the nondelegation doctrine. But several Justices appear eager—or at least willing—to revive the nondelegation doctrine.

This Comment charts an originalist path forward. It primarily argues that the original meaning of legislative power restrains Congress from delegating legislative authority to write criminal law. The constitutional enactors believed that core private rights—to life, liberty, and property— required greater statutory specificity to regulate than public rights. Private rights thus restrain Congress from delegating carte blanche authority to agencies to criminalize conduct because the statute authorizing such a delegation will necessarily lack specificity. A criminal statute cannot concomitantly entail statutory specificity and delegate necessary details— such as the actus reus—to the Executive Branch.

Unsurprisingly, the Founding Era historical record reflects a dearth of legislative delegations to write criminal law. This lack of evidence is expected. Administrative crimes would have enabled the Executive Branch to unilaterally regulate the core private right to liberty, and often the private right to life, given the proportion of federal offenses that were capital offenses. Nevertheless, the absence of criminal law delegations need not present dispositive evidence that a categorical prohibition on such delegations existed. However, if a compelling originalist argument exists for the nondelegation doctrine, it must account for the private/public rights distinction that permeated Founding Era legal practices.

The contemporary practice of administrative crimes departs from the original meaning of legislative power. Congress increasingly delegates legislative authority to administrative agencies to determine whether and how particular statutes will create federal offenses. Most—if not all— delegations that enable administrative agencies to unilaterally create administrative crimes will lack statutory specificity. This practice conflicts with the originalist private/public rights taxonomy. But it also remains in tension with fundamental principles of Anglo-American criminal jurisprudence—including nullum crimen sine lege, the rule of lenity, the void-for-vagueness doctrine, and the prohibition on federal criminal common law.

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