The Non-Redelegation Doctrine

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 Article argues that, when faced with a decision that implicates an unambiguous delegation, the courts should not redelegate unless authorized by Congress to do so.

The proposed nonredelegation doctrine rests on both constitutional and practical grounds. Constitutionally, judicial redelegation raises substantial separation of powers concerns because delegation defines how Congress chooses to perform its core function of setting policy. 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 Article uses Booker to illustrate the need for the presumption, the presumption could apply to other contexts in which Congress delegates its power to make policy and courts have the opportunity to alter that delegation.