Delegation of Legislative Power – Crime and Punishment

Delegation of Legislative Power Concerns – Crime and Punishment

The Court has confessed that its “cases are not entirely clear as to whether more specific guidance is in fact required” for delegations relating to the imposition of criminal sanctions.1 It is clear, however, that some essence of the power to define crimes and set a range of punishments is not delegable, but must be exercised by Congress. This conclusion derives in part from the time-honored principle that penal statutes are to be strictly construed, and that no one should be “subjected to a penalty unless the words of the statute plainly impose it.” 2 Both Schechter 3 and Panama Refining 4 &emdash;the only two cases in which the Court has invalidated delegations&emdash;involved broad delegations of power to “make federal crimes of acts that never had been such before.” 5 Thus, Congress must provide by statute that violation of the statute's terms&emdash;or of valid regulations issued pursuant thereto&emdash;shall constitute a crime, and the statute must also specify a permissible range of penalties. Punishment in addition to that authorized in the statute may not be imposed by administrative action.6

More about Delegation of Legislative Power – Crime and Punishment

However, once Congress has exercised its power to declare certain acts criminal, and has set a range of punishment for violations, authority to flesh out the details may be delegated. Congress may provide that violation of valid administrative regulations shall be punished as a crime.7 For example, the Court has upheld a delegation of authority to classify drugs as “controlled substances,” and thereby to trigger imposition of criminal penalties, set by statute, that vary according to the level of a drug's classification by the Attorney General.8

Delegation of Legislative Power – Crime and Punishment: Developments

Congress may also confer on administrators authority to prescribe criteria for ascertaining an appropriate sentence within the range between the maximum and minimum penalties that are set by statute. The Court upheld Congress's conferral of “significant discretion” on the Sentencing Commission to set binding sentencing guidelines establishing a range of determinate sentences for all categories of federal offenses and defendants.9 Although the Commission was given significant discretionary authority “to determine the relative severity of federal crimes, . . . assess the relative weight of the offender characteristics listed by Congress, . . . to determine which crimes have been punished too leniently and which too severely, [and] which types of criminals are to be considered similar,” Congress also gave the Commission extensive guidance in the Act, and did not confer authority to create new crimes or to enact a federal death penalty for any offense.10

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References

This text about Delegation of Legislative Power – Crime and Punishment is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

[Footnote 1] Touby v. United States, 500 U.S. 160, 166 (1991).

[Footnote 2] Tiffany v. National Bank of Missouri, 85 U.S. (18 Wall.) 409, 410 (1873).

[Footnote 3] A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

[Footnote 4] Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).

[Footnote 5] Fahey v. Mallonee, 332 U.S. 245, 249 (1947).

[Footnote 6] L. P. Steuart & Bro. v. Bowles, 322 U.S. 398, 404 (1944) (“[I]t is for Congress to prescribe the penalties for the laws which it writes. It would transcend both the judicial and the administrative function to make additions to those which Congress has placed behind a statute”).

[Footnote 7] United States v. Grimaud, 220 U.S. 506 (1911). The Forest Reserve Act at issue in Grimaud clearly provided for punishment for violation of “rules and regulations of the Secretary.” The Court in Grimaud distinguished United States v. Eaton, 144 U.S. 677 (1892), which had held that authority to punish for violation of a regulation was lacking in more general language authorizing punishment for failure to do what was “required by law.” 220 U.S. at 519. Extension of the principle that penal statutes should be strictly construed requires that the prohibited acts be clearly identified in the regulation. M. Kraus & Bros. v. United States, 327 U.S. 614, 621 (1946). The Court summarized these cases in Loving v. United States, 517 U.S. 748 (1996), drawing the conclusion that “there is no absolute rule . . . against Congress's delegation of authority to define criminal punishments.”

[Footnote 8] Touby v. United States, 500 U.S. 160 (1991).

[Footnote 9] Mistretta v. United States, 488 U.S. 361 (1989).

[Footnote 10] 488 U.S. at 377-78. “As for every other offense within the Commission's jurisdiction, the Commission could include the death penalty within the guidelines only if that punishment was authorized in the first instance by Congress and only if such inclusion comported with the substantial guidance Congress gave the Commission in fulfilling its assignments.” Id. at 378 n.11.

Tables of Contents

• Delegation of Legislative Power – Crime and Punishment and other Topics in the Contents – Article 1 of the U.S. Constitution
• U.S. Constitutional Law Category
• List of amendments to the U.S. Constitution
• Delegation of Legislative Power – Crime and Punishment and other Topics in the Constitution Contents
• Interpretation of the U.S. Constitution (Table of Contents)
• Clauses of the Constitution (Table of Contents)