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Thread: May Congress delegate the power to define crime by regulation? Volokh Conspiracy.com

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    May Congress delegate the power to define crime by regulation? Volokh Conspiracy.com

    "May Congress delegate to the Executive the power to define minor crimes by regulation? A question raised, but not answered — since the defendant didn’t argue it — in Judge Neil Gorsuch’s characteristically scholarly opinion in United States v. Baldwin (10th Cir. Feb. 18, 2014). I know that some people disagree, but I think it’s a useful service when judges flag these issues, and alert lawyers that this is something that bears considering, even if the issues weren’t pressed in the particular case (some paragraph breaks added): (http://www.washingtonpost.com/news/v...by-regulation/)

    "Thanks to this and many other similar and similarly generous congressional delegations, the Code of Federal Regulations today finds itself crowded with so many “crimes” that scholars actually debate their number. See, e.g., John C. Coffee, Jr., Does “Unlawful” Mean “Criminal”?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B.U. L.Rev. 193, 216 (1991) (“By one estimate, there are over 300,000 federal regulations that may be enforced criminally.”); Susan R. Klein & Ingrid B. Grobey, Debunking Claims of Over–Federalization of Criminal Law, 62 Emory L.J. 1, 28 (2012) (“An enormous number of new regulatory crimes were enacted in the period 1980–2011, so many that we were unable to count even a fraction of them….”). And quite apart from the separation of powers questions these arrangements pose, what about the “reasonableness” limitation found in the specific delegation before us? In the statute at issue here, Congress says agency officials may prescribe only “reasonable” criminal penalties within the limits it has prescribed (30 days in prison, usually no more than $5,000 in fines). Who’s to say what in that range is reasonable, and by what measure? [my emphasis] (http://www.ca10.uscourts.gov/opinions/13/13-1198.pdf)

    More broadly, may any legislature delegate to the executive such powers?
    I am responsible for my writing, not your understanding of it.

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    Regular Member OC for ME's Avatar
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    Don't blame the legislative branch for delegating. Blame the executive branch for acting.

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    Quote Originally Posted by OC for ME View Post
    Don't blame the legislative branch for delegating. Blame the executive branch for acting.
    Good article.

    I disagree about blame. The legislature cannot delegate its authoriy. It is to blame for doing so. It is our fault for not understanding this and stopping them.

    The purpose of admin law was never to delegate legislative authority. It has morfed into just that.

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    Do they delegate or do they require?

    With the CFR's does congress tell, like the EPA, to promulgate regulations to meet the expectations of the law passed?

    Like in our lovely PA13-3 (gun law) in CT the legislature stated that the police can produce forms for people to declare their meany assault weapons and mags...but the legislature did not state what information that they can demand....so the police, I think, asked for information that goes too far (fingerprints for example) and requires people to jump over many hurdles to get the form completed.

    Of course, in the case noted, the defendant's conviction was affirmed ...
    Last edited by davidmcbeth; 02-20-2014 at 10:25 AM.

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    Regular Member OC for ME's Avatar
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    Quote Originally Posted by georg jetson View Post
    Good article.

    I disagree about blame. The legislature cannot delegate its authority. It is to blame for doing so. It is our fault for not understanding this and stopping them.

    The purpose of admin law was never to delegate legislative authority. It has morfed into just that.
    The legislature (state & federal) can do as they please as long as what they are pleased to do does not violate the state, or federal constitutions. In this case, the federal legislation must only abide by the federal constitution. The next legislature could, though they will not, undo the delegating that occurred while their predecessors were seated. Then the next bunch can re-delegate.

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    Quote Originally Posted by OC for ME View Post
    ...<snip> The next legislature could, though they will not, undo the delegating that occurred while their predecessors were seated. Then the next bunch can re-delegate.
    I don't agree with that...while technically true, it just rarely happens.

    We are bound by laws that we had no representation ! A crapload of them ! Laws passed before I was born !

    Why should I be bound by them ? Simply because they are on the books ? No, I don't buy that. Now I have (or current legislatures) have to take an affirmative step to free me from such laws that I had no say in ? I would be spending all my time on such efforts.

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    Quote Originally Posted by OC for ME View Post
    The legislature (state & federal) can do as they please as long as what they are pleased to do does not violate the state, or federal constitutions. In this case, the federal legislation must only abide by the federal constitution. The next legislature could, though they will not, undo the delegating that occurred while their predecessors were seated. Then the next bunch can re-delegate.
    The fed legislature can't delegate because of seperation of powers. It does so currently without authority.

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    Quote Originally Posted by davidmcbeth View Post
    Do they delegate or do they require?

    With the CFR's does congress tell, like the EPA, to promulgate regulations to meet the expectations of the law passed?

    Like in our lovely PA13-3 (gun law) in CT the legislature stated that the police can produce forms for people to declare their meany assault weapons and mags...but the legislature did not state what information that they can demand....so the police, I think, asked for information that goes too far (fingerprints for example) and requires people to jump over many hurdles to get the form completed.

    Of course, in the case noted, the defendant's conviction was affirmed ...
    Yes, the legislature authorizes promulgation of rules for the agemcy heads, but these rules and regs must remain within the scope of the original legislation. Let me give an example:

    At one time the dept of Interior promulgated a rule forbidding firearms on fed land under their jurisdiction. Not only was that outside the the authority given by congress, congress doesn't even have the authoroty to give Iin this case. Any charge made under that cfr is properly defeated by motion to dismiss "ultra vires".

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