Because violations of criminal law can result in serious limitations of liberty (e.g., imprisonment or death), delegations of criminal law authority are subject to special rules. Separation-of-powers problems are not created when Congress delegates the authority to ferret out and prosecute criminal conduct to executive agencies because these responsibilities are inherently executive. Delegations of penal rule-making authority and penal adjudicatory authority, however, raise constitutional questions. We begin with penal rulemaking authority.

First, delegations of criminal rulemaking and judicial authority to private ac-tors are very likely unconstitutional. Public agencies, in contrast, may be delegated limited penal rulemaking responsibilities. Because the penalties for violating criminal laws include imprisonment and other punishments, some jurists contend that agency authority must be more limited than in administrative cases where less serious punishments are imposed. Agencies may also act in a quasi-adjudicative role in penal cases although this authority is extremely limited.

With sufficient guidance from Congress, an agency may establish a rule declaring an act criminal, but it may not determine what punishment should be imposed for violation of the rule. Although agencies may not order the imprisonment of individuals as punishment, they may arrest and detain persons if that action is justified by extreme circumstances.