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Defining Crimes By Regulation

Eugene Volokh at VC has a post titled "May Congress delegate to the Executive the power to define minor crimes by regulation?"  He points to a Tenth Circuit decision Tuesday in United States v. Baldwin, No. 13-1198, in which Judge Gorsuch muses on that question.
From the opinion:

By what authority is the Executive permitted to criminalize conduct and impose jail terms in administrative regulations buried deep within the Code of Federal Regulations? Normally we don't think of regulatory agencies as entitled to announce new crimes by fiat. But with some scratching around we see that Congress did expressly authorize first the General Services Administration and then the Department of Homeland Security to establish regulations "for the protection and administration of property owned or occupied by the Federal Government" and to prescribe "reasonable" penalties of "not more than 30 days" in prison and fines in the amounts allowed by title 18. See 40 U.S.C. § 1315(c) (formerly found at 40 U.S.C. §§ 318a, 318c); cf. 6 U.S.C. § 552 (facilitating transfer of authority from GSA to DHS). So it is that the regulation at issue before us can claim at least some legislative pedigree, some measure of congressional authorization.

Still there's no question the arrangement bears its curiosities. Can Congress so freely delegate the core legislative business of writing criminal offenses to unelected property managers at GSA? Might this arrangement, though arrived at with Congress's assent, still blur the line between the Legislative and Executive functions assigned to separate departments by our Constitution? Cf. Touby v. United States, 500 U.S. 160, 165-66 (1991) (admitting "[o]ur cases are not entirely clear as to whether more specific guidance is in fact required" when Congress is delegating authority "to promulgate regulations that contemplate criminal sanctions"); Wayne R. LaFave, Criminal Law § 2.6(a), at 131 & nn.6-7 (5th ed. 2010).

These musings go nowhere, however, as the defendant did not raise the objection.  Is it even proper to bring it up in the opinion, then?  Eugene thinks so but acknowledges that others differ.

A third count in the case involves a federal prosecution for a crime defined in state law, adopted for a federal installation by the Assimilative Crimes Act.  Judge Gorsuch doesn't have a problem with that, and indeed such congressional adoptions of state law go back to the dawn of the republic.

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