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.171 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.”172 Both Schechter173 and Panama Refining174 —the only two cases in which the Court has invalidated delegations—involved broad delegations of power to “make federal crimes of acts that never had been such before.”175 Thus, Congress must provide by statute that violation of the statute’s terms—or of valid regulations issued pursuant thereto—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.176

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.177 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.178

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.179 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.180


Touby v. United States, 500 U.S. 160, 166 (1991). back
Tiffany v. National Bank of Missouri, 85 U.S. (18 Wall.) 409, 410 (1873). back
A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). back
Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). back
Fahey v. Mallonee, 332 U.S. 245, 249 (1947). back
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”). back
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.” back
Touby v. United States, 500 U.S. 160 (1991). back
Mistretta v. United States, 488 U.S. 361 (1989). back
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. back