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June 13, 2013

"The Non-Redelegation Doctrine" with post-Booker sentencing in mind

Now available via SSRN is this intriguing new article from F. Andrew Hessick III and Carissa Byrne Hessick, which is titled simply "The Non-Redelegation Doctrine." Here is the abstract, which highlights why this article should be of special interest to sentencing fans:

In United States v. Booker, the Court remedied a constitutional defect in the federal sentencing scheme by rendering advisory the then-binding sentencing guidelines promulgated by the U.S. Sentencing Commission.  One important but overlooked consequence of this decision is that it redelegated the power to set sentencing policy from the Sentencing Commission to federal judges.  District courts now may sentence based on their own policy views instead of being bound by the policy determinations rendered by the Commission.

This Essay argues that, when faced with a decision that implicates a delegation, the courts should not redelegate unless authorized by Congress to do so.  The proposed non-redelegation doctrine rests on both constitutional and practical grounds. Constitutionally, because delegation defines how Congress chooses to perform its core function of setting policy, judicial redelegation raises substantial separation of powers concerns.  Practically, judicial redelegation is bound to affect the substantive policies that are adopted because the policies that the agent adopts depend on the agent’s unique characteristics and preferences.  Although this Essay uses Booker to illustrate the need for the presumption, the presumption would apply equally to the myriad contexts in which Congress delegates its power to make policy and courts have the opportunity to alter that delegation.

June 13, 2013 at 12:31 PM | Permalink

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Comments

Wow. I can see why no one has commented yet. This separation of powers issue in the sentencing sphere needs to be fully addressed. I don't think Congress or the Executive can appoint a committee to tell judges how to think or decide. The minimum mandatory thing is beyond the Pale or in more precise terms beyond the Paletinate. As in East of Corfu the Ten Commandments Don't Apply. A judge should have the discretion to let a guy loose if all things are considered and prison wont serve a purpose.

Posted by: Liberty1st | Jun 13, 2013 11:28:29 PM

"One important but overlooked consequence of this decision is that it redelegated the power to set sentencing policy from the Sentencing Commission to federal judges." I suspect the authors arevthevonly ones on thevplsnetbwhonthinknthis was overlooked. That statement is beyond ridiculous .

Posted by: Steve Prof | Jun 14, 2013 6:32:55 AM

|| This separation of powers issue in the sentencing sphere needs to be fully addressed.||

Do we need a "national conversation"?

Posted by: Adamakis | Jun 14, 2013 2:58:07 PM

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