Issue 7

Powers, But How Much Power? Game Theory and the Nondelegation Principle

Of all constitutional puzzles, the nondelegation principle is one of the most perplexing. How can a constitutional limitation on Congress’s ability to delegate legislative power be reconciled with the huge body of regulatory law that now governs so much of society? Why has the Court remained faithful to its intelligible principle test, validating expansive delegations of lawmaking authority, despite decades of biting criticism from so many camps? This Article suggests that answers to these questions may be hidden in a surprisingly underexplored aspect of the principle. While many papers have considered the constitutional implications of what it means for Congress to delegate legislative power, few have pushed hard on the second part of the concept: what it means for an agency to have legislative power.

Using game theory concepts to give meaning to the exercise of legislative power by an agency, this Article argues that nondelegation analysis is actually more complicated than it appears. As a point of basic construction, a delegation only conveys legislative power if it (1) delegates lawmaking authority that is sufficiently legislative in nature, and (2) gives an agency sufficient power over the exercise of that authority. But, again using game theory, this Article shows that an agency’s power to legislate is less certain than it first appears, making satisfaction of this second element a fact question in every case.

This more complicated understanding of the nondelegation principle offers three contributions of practical significance. First, it reconciles faithful adherence to existing theories of nondelegation with the possibility of expansive delegations of lawmaking authority. Second, it suggests a sliding-scale interpretation of the Court’s intelligible principle test that helps explain how nondelegation case law may actually respect the objectives of existing theories of nondelegation. Third, it identifies novel factors that should (and perhaps already do) influence judicial analysis of nondelegation challenges.

A Cost-Benefit Analysis–Based Interpretation of Reciprocity Under Clean Air Act Section 115(c)

Section 115 of the Clean Air Act provides for the regulation of international pollutants, and has been considered as a potential source of authority for regulating greenhouse gas emissions. In order to trigger the authority of the Environmental Protection Agency (“EPA”) to regulate under Section 115, EPA’s Administrator must determine that the relevant foreign countries have given the United States “essentially the same rights” as Section 115 gives those countries. This Note proposes a novel interpretation of this reciprocity requirement based on cost-benefit analysis (“CBA”). On this CBA-based interpretation, the reciprocity requirement is satisfied where the benefits that the United States receives from all countries’ emission reductions outweigh the costs of reducing its own emissions.

The CBA-based interpretation is consistent with trends in administrative law toward requiring agencies to consider the costs and benefits of regulation, and with a plausible reading of Section 115 as giving foreign countries the right to mutually beneficial emission reductions. The CBA-based interpretation also has legal and policy advantages: it may help avert challenges to regulation of greenhouse gas emissions under Section 115 based on the major questions doctrine, it may show that climate regulation is cost justified based on domestic climate benefits even if ancillary benefits and foreign benefits are not considered, and it may represent a rational strategy for approaching international environmental negotiations that could lead to an efficient outcome in the case of climate change if adopted by all parties.

This Note illustrates the CBA-based interpretation of reciprocity by applying it to the United States’ pledge under the Paris Climate Agreement.

Legislative Underwrites

This Article introduces a widespread but virtually unacknowledged practice in Congress and state legislatures. Not only do legislatures override judicial decisions when they disagree with judicial rulings and doctrine, they also underwrite judicial decisions when they agree with those rulings. For all the literature on the adversarial communication evidenced through legislative overriding, there is not a single paper devoted to legislative underwrites, which reflect more collaborative dimensions of interbranch interaction. This Article begins to fill that void, and in so doing, frames practical and theoretical lessons for legislative, judicial, and scholarly audiences.

More specifically, this Article defines the contours of an underwrite and identifies the diversity of underwrite initiatives in Congress and state legislatures. It then normatively evaluates costs and benefits that might flow from a more self-conscious approach to underwrites, analyzing these pros and cons as they operate at pragmatic, doctrinal, and conceptual levels.

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