Volume 104 - Virginia Law Review

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.

The Death Penalty as Incapacitation

Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence. The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary. The view on the ground could not be more different. Hundreds of executions have been premised on the need to protect society from dangerous offenders. Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.

How can courts and commentators pay so little heed to this driving force behind executions? The answer lies in two assumptions: first, that solitary confinement and life without parole also incapacitate, and second, that prediction error makes executions based on future risk inherently arbitrary. Yet solitary confinement and life without parole entail new harms—either torturous isolation or inadequate restraint. Meanwhile, the problem of prediction error, while significant, can be greatly reduced by reevaluating future dangerousness over time.

This Article illuminates the remarkable history, influence, and normative import of the incapacitation rationale, and shows how serious engagement with the incapacitation rationale can lead to practical reforms that would make the death penalty more fair. It concludes by highlighting several of the most promising reforms.

The Missing Theory of Representation in Citizens United

Restrictions on campaign speech violate the First Amendment unless they are aimed at preventing either corruption or the appearance of corruption. The definition of corruption is thus central to campaign finance jurisprudence. In Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), the Supreme Court defined corruption narrowly, to include a quid pro quo exchange and nothing else. In this Note, I examine the viability of that definition by combining two previously dissociated bodies of literature—one exploring the Court’s varying definitions of corruption in campaign finance cases and the other addressing the proper role of a representative in a democracy. I argue that, although any viable definition of corruption must be based on an underlying theory of representation, no commonly accepted theory of representation underlies the narrow quid pro quo definition adopted in Citizens United. Thus, I suggest the Court take up another campaign finance case soon, so that it can either (1) articulate a theory of representation that justifies its narrow quid pro quo definition of corruption or (2) reconsider that definition.

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