Non-Delegation Doctrine Does Not Apply to Executive Actions

United States v. Bruce, ___ F.3d ___ (3d Cir. 2020). The “non-delegation” doctrine, used by the Supreme Court of the United States in the 1930’s to void certain aspects of the New Deal, has been receiving renewed attention lately, especially in certain conservative circles. As discussed here, Justices Gorsuch and Kavanaugh each wrote favorably about the doctrine within the last year.

In this decision by Judge Shwartz today, the Third Circuit faced the question whether “the statute that allows the Government to seek an enhanced sentence based on [a defendant’s] prior convictions, 21 U.S.C.§851, violates the non-delegation doctrine.” That argument had not been raised below, so the court reviewed it under “plain error” standards. In a concise opinion, Judge Shwartz concluded that “there was no error, plain or otherwise.”

Article I of the United States Constitution confers legislative power on Congress. Under the non-delegation doctrine, Judge Shwartz said, quoting a Supreme Court case, that legislative power cannot be delegated to a different branch unless Congress “lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.”

But the non-delegation doctrine does not apply to “exercises of executive power.” Defendant’s argument here failed “because the filing of a § 851 information is an exercise of executive, not legislative, power. A prosecutor’s decision to file a § 851 information is akin to the decision of what, if any, charges to bring against a criminal suspect. That power is firmly committed to the discretion of the Executive Branch.” (Citations and internal quotation marks omitted).

Judge Shwartz observed that six other Circuits (the First, Second, Fourth, Fifth, Sixth, and Ninth) had rejected non-delegation doctrine arguments in cases involving the filing of a § 851 information. Today, the Third Circuit “join[ed its] sister Courts of Appeals” in that conclusion.