Three Conceptions of Federal Criminal-Lawmaking

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This article describes and evaluates three competing conceptions of federal criminal-lawmaking. The first, which can be called the legislative supremacy position, conceives of federal crimes as purely legislative in origin. This is the dominant understanding of how federal criminal-lawmaking does and should work. It also happens to be a rank fiction. The second conception of federal criminal-lawmaking can be called the common-law position. It depicts the operative rules of federal criminal law as judicial in derivation in much the way that the operative rules of federal antitrust and labor law clearly are. The common-law conception offers the best description of federal criminal-lawmaking as it currently exists. It is also normatively superior to the conventional legislative-supremacy position, although it is afflicted with some fairly obvious pathologies. The third and final conception of federal criminal-lawmaking can be called the administrative-law position. On this view, defining operative rules of federal criminal law would be the responsibility of the Executive Branch of government, which would carry out this task either by promulgating legally binding rules akin to the Federal Sentencing Guidelines, or by announcing statutory interpretations that courts would be bound to defer to in criminal prosecutions. The administrative conception is not the system of criminal lawmaking that we have or that anyone thinks we have. Nevertheless, it's the system that we ought to have, and one we easily could with only modest doctrinal innovation.