The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Question for Mastodon Users

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Mastodon of course lets you interact with people from any other Mastodon servers; but it also has features that make it easier for you to interact with people from the same server. If you use Mastodon, do you find that you take advantage of these local-interaction features? Or do you mostly just interact with your followers and the people you follow, regardless of what server they're on?

Sports

Teaching math through World Cup soccer

FIFA rules give you a good opportunity to explore combinatorics and logic puzzles.

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Now that the U.S. has played England to a draw in the World Cup, it's a good opportunity to use FIFA rules to calculate how many games there have to be in a World Cup.

1. The group stage

First, we have a group stage, where the 32 qualifying teams are placed in 8 groups 4, and in each group, the 4 teams play each other round-robin (i.e., each team plays each other team); each team gets points that way (e.g., 3 for a win, 1 for a draw), and the two teams with the highest number of points in each group advance to the knockout stage. (Because teams can be tied on points, this relies on a number of tiebreaker rules.)

In a round-robin tournament, the number of ways of populating "X plays against Y" when there are n teams is n × (n–1), because you can put n teams in the first spot and n–1 teams in the second spot (because "England plays England" isn't a thing). But when you do that, you're double-counting, because "England plays the U.S." is counted differently than "The U.S. plays England". So we'll just divide by 2, and get n(n–1)/2.

In general, this is the combinatorics concept called "n choose k", where (n,k) = n!/[(n–k)!k!]; here, we're using "n choose 2", which is just equal to n(n–1)/2.

Anyway, that means each group of 4 has 4×3/2 = 6 games, and since there are 8 groups, that makes 8×6 = 48 games.

2. The knockout stage

Next, we have a knockout stage, where the 16 teams are reduced to 1. This is a single-elimination tournament, where the loser in any game is immediately eliminated. (Unlike in the group stage, you can't have ties in individual games, so this requires a way of producing a winner in each individual game, e.g., sudden death overtimes and penalty kicks.)

When the number of teams is a power of 2, then it's easy to produce brackets—and it's easy to check that with 16 teams, you get a winner with 15 games (i.e., 8 games in the round of 16, plus 4 games in the quarter-final, plus 2 games in the semi-final, plus 1 final game, and 8 + 4 + 2 + 1 = 15). But you can always produce a bracket with a non-power of 2 by using some number of byes.

So, you can ask, how many games would you need in general in a single-elimination tournament if there are n games, where n isn't guaranteed to be a power of 2? You can try creating a sample bracket and counting up the number of games, but how do you know that's the best bracket design? Could you do better? Now what if I gave you a very large number of teams, like 693? Are you going to test out various brackets?

This has long been one of my father Vladimir's favorite logic puzzles. You can cut this particular Gordian knot by observing that, when you have n games, eliminating down to 1 necessarily requires eliminating n–1 participants, and in a single-elimination tournament, playing 1 game necessarily eliminates exactly 1 participant. So the number of games is exactly n–1. If you start with 693 teams, you'll always play exactly 692 games to get a winner.

(There might still be better and worse designs of brackets: for example, the design "A plays B, and then the winner of that game plays every single other team sequentially" is probably not the best design, because then you'll be expecting the best team to play 692 games while every other team only plays 1… and if the worst team happens to play on the last day while the best team is having a bad day, you might get a perverse result. Better to approximate the power-of-2-type brackets, where every team plays up to approximately the log-base-2 of the number of teams (rounding up), and nobody wins unless they've played approximately that number of games (rounding down). But still, as far as the total number of games is concerned… the best bracket and the worst bracket will have exactly the same number of games.)

Anyway, to eliminate 16 teams down to 1, just apply the n–1 rule, and you get 15 games.

3. The third-place contest

But wait a minute, we still have one more game to play. FIFA happens to have a "third-place playoff" game: while the winners of the two semifinal games advance to the final (and are defined as first-place and second-place), the losers of those two semifinal games play one additional game (and are defined as third-place and fourth-place).

Thus, in the 2018 World Cup (which was played in seven different Russian cities), the semifinals involved France vs. Belgium (won by France) and Croatia vs. England (won by Croatia). In the final, France played Croatia (France won), but before that game, Belgium played England (Belgium won).

Now, strictly speaking, this isn't really an accurate ranking, because how do we know that Croatia is #2 while Belgium is #3? What if France and Belgium were the top 2 teams, while Belgium and England would have been ranked #9 and #10 out of the 16 teams in the knockout stage (but the brackets were arranged in such a way that the good teams were all on top but the bad teams were all on the bottom)? There's a sloppiness in defining the final-loser as #2 and the winner-of-semifinal-losers as #3. But hey, everyone likes rankings, even if they're inaccurate.

4. Putting it together?

Putting it all together, we get 48 games in the group stage, plus 15 games in the knockout stage, plus an extra game to determine third place, which makes 64.

Why not just play round-robins, which irons out the effects of having bad days and gives you a more scientific estimate of who's the better team? (Neither system is perfect: single-elimination puts a lot of emphasis on not having bad days, while round-robin involves arbitrary win-to-draw point ratios, e.g., 3:1 for FIFA and 1:0.5 for chess.)

Turns out that, because the round-robin rule is n(n–1)/2, the number of round-robin games you'd have to play increases as the square of the number of teams. With 32 teams, you'd have 32×31/2 = 496 games. That's a lot more than 64!

If you have T = nk teams and you divide those teams into k groups of n, you get kn(n–1)/2 games, but since k = T/n, you can express that as T(n–1)/2 games. With T = 32 and n = 4, that's another way of getting to 32×3/2 = 48 games for the group stage. So, holding the number of teams constant, we're basically linear in the number-of-teams-per-group. We could minimize the number of games by making n = 2, i.e., 16 games (32 games total when you add in the knockout stage and third-place game), i.e., just making it single-elimination all the way back. Or we could maximize the number of games by making n = 32 and actually playing those 496 games.

FIFA has chosen an arbitrary number of groups and then an arbitrary place to start the knockout stage, which gives us 64, a nice compromise between 32 games and 496.

What's the Original Public Meaning of "Searches" in the 4th Amendment?

And how, if at all, is the Katz test different?

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I recently helped put together a panel, that you can watch below, on an important question of Fourth Amendment history and law: What is the original public meaning of "searches" of "persons, houses, papers, and effects" in the Fourth Amendment? And how is the Katz reasonable-expectation-of-privacy test different?  I've been very interested in this question for a few years now, and wrote my recent article Katz as Originalism about the topic (which was in turn inspired by a few blog posts I wrote here at the Volokh Conspiracy).  I was joined by the elusive Fourth Amendment historian William J. Cuddihy, author of the massive tome The Fourth Amendment: Origins and Original Meaning 602-1791, and my colleague Andrea Roth.

Politics

Short Circuit: A Roundup of Recent Federal Court Decisions

Unconsidered pesticides, undesirable aliens, and unconstitutional delegating.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Friends, the feds are proposing a new, clear-as-mud rule requiring new corporate entities to identify all owners who exercise "substantial influence over important decisions." It is believed that this will help the gov't catch out drug dealers and money launderers using shell companies to hide their misdeeds, but—we promise you—the bad guys will just shift their tactics. The actual effect of the rule will be to require law-abiding small business owners to file millions of unnecessary reports, creating a honeypot of sensitive information that hackers can exploit. IJ Senior Attorney Robert Everett Johnson has more at USA Today.

  • Environmental groups sue the EPA in 2014 for failing to consider whether a pesticide it approved complies with the Endangered Species Act. The EPA concedes it did not do so. D.C. Circuit: (2017): You guys had better get on that. EPA: Yeah, we'll get around to it. D.C. Circuit: 2022: MANDAMUSED! Finish it by next September and give us updates on your progress every 60 days.
  • In October 2018 and again in March 2019, two Boeing 737 MAX 8 aircraft crashed, killing all aboard and revealing fatal defects that lead to the planes being grounded worldwide. A class of plaintiffs sue. Oh, not about those crashes—they sue about having flown on Boeing 737 MAX 8 aircraft that brought them safely to their destinations. But if they had known about the planes' alleged deficiencies, they definitely would not have paid so much for their tickets. Fifth Circuit: Airlines don't offer customers discounts for flying on riskier aircraft; if the defects had been public knowledge, the airlines would have operated no flights on the 737 MAX 8, reducing the number of available seats and increasing ticket prices. No economic injury, no case.
  • What do you do if you want to regulate, but you don't want to actually … regulate? Maybe you give a group of private people the power to regulate their peers. That's the approach Congress took in a 2020 law that gave a private association power to regulate the horseracing industry, including the power to promulgate rules, investigate violations, and impose penalties. Fifth Circuit: And that violated the cardinal rule that private parties cannot wield gov't power.
  • Man caught entering U.S. from Mexico convicted of unlawful reentry (having been deported twice before). District court: Though its predecessor, the Undesirable Aliens Act of 1929, violated equal protection, Congress's deliberation and enactment of more recent versions of the statute cured the prior discriminatory taint. You're sentenced to 30 months in prison and three years of supervised release, the latter of which allows you time to appeal the conviction. Fifth Circuit: Can't base the term of supervised release on the timing for an appeal.
  • To mitigate the economic effects of COVID-19, Congress throws a boatload of cash at the states but says they can't use the money to "directly or indirectly offset a reduction" in taxes. Ohio (in one lawsuit) and Kentucky and Tennessee (in another) claim the "offset" is unconstitutional. In response, Treasury says most tax cuts are OK as long as the total amount of spending doesn't decrease. Sixth Circuit: And because of this "credible" clarification, Ohio's suit is moot. Sixth Circuit: And so (over a dissent) is Kentucky's. But Tennessee's isn't because it will have more paperwork. And that means we can say Congress was unconstitutionally vague. (The Sixth thus splits with the Eighth Circuit, which found that Missouri lacked standing.)
  • Allegation: Weeks after Columbus, Ohio officers say man fled from traffic stop, he's arrested at his home (on Thanksgiving) and jailed for five days. Yikes! The man's roommate, who doesn't look anything like him, had borrowed his car on the night in question. The officers just looked up the car owner's photo and put his description in their report. Sixth Circuit (unpublished): "Officers lying about the basis for probable cause is the kind of 'obvious' rights violation that does not demand a catalog of factually similar cases." Moreover, "[a]n officer does not need to be on notice of a specific kind of lie he is prohibited from telling." That said, there is a case on point. No qualified immunity.
  • Plaintiffs: These Michigan counties illegally retain the surplus value of homes sold to enforce tax liens, so we sue them! Insurance company (for one of the counties): Our policy doesn't require us to cover these claims, so we sue you right back! Sixth Circuit: You can't sue somebody who hasn't asked you to do anything just because you want a declaration that you won't have to pay for a judgment they might someday perhaps obtain against a third party.
  • Illinois subscriber to Good Housekeeping finds her personal information has been sold to data miners without her permission. She sues Hearst Communications for violating the Illinois Right of Publicity Act. Seventh Circuit: The Act doesn't ban selling the personal information ("Here's everything we know about Elizabeth"), it bans using the personal information to sell things ("Elizabeth from Illinois thinks our subscriber data is the best!"). No claim.
  • Younger-abstention aficionados will know that the federal courts' overreliance on the so-called "Middlesex factors" has aged like fine milk in the decade since the Supreme Court's decision in Sprint Communications, Inc. v. Jacobs. Eighth Circuit: So why are the parties' briefs in this Younger-abstention appeal "focused almost entirely on the Middlesex factors"? Pish posh. No Younger abstention. The case—a challenge to Stone County, Mo.'s vacation rental rules—may proceed.
  • Citizen of El Salvador illegally came to the U.S. when a minor and over the next few years "accumulated a fairly lengthy criminal record." After an arrest in 2018, he's placed in removal proceedings. He asks to be let out on bond; is denied. Fourteen months later, and still in removal proceedings, he asks for another bond hearing. Does he have a due process right to the second hearing because his proceedings have been "prolonged"? Ninth Circuit: Not under the standard balancing test. Concurrence: This guy might have won if James Madison's views of immigrants had prevailed. Too bad John Marshall's did instead. Dissent: The test says yes.
  • Plaintiffs who allege they are the heirs to owners of beachfront Cuban properties that were nationalized after the 1959 revolution sue … U.S. travel websites? Indeed! The sites allow one to secure lodging at resorts the Cuban gov't built on the stolen land, and in 1996 Congress created a private cause of action allowing suits against folks who knowingly traffic in expropriated property. (The cause of action had been suspended by successive presidential decrees until 2019.) Eleventh Circuit: The district court has jurisdiction over the defendants and the plaintiffs have standing. Case undismissed.
  • And yet, says the Eleventh Circuit, a man suing cruise lines that use commercial waterfront property in Cuba that was confiscated from plaintiff's cousin's brother in 1960 cannot recover because he inherited his interest in the property in 2000, which is after 1996. Concurrence: Which is indeed the outcome the statute requires, but it sure looks like a case of sloppy drafting.
  • And in en banc news, the Ninth Circuit will not reconsider its decision upholding the Mandatory Repatriation Tax of the Tax Cuts and Jobs Act of 2017, which requires investors in foreign companies to pay taxes on unrealized investment gains. Four judges dissent, arguing that the tax is an unapportioned direct tax that exceeds Congress' power under the 16th Amendment, which applies only to realized income.
  • And in amicus brief news, IJ is asking the Second Circuit to rule that an officer pointing a gun at someone who is compliant and nonthreatening is by itself a clearly established Fourth Amendment violation. Earlier this year, a federal district court granted qualified immunity to an NYPD officer who pointed his gun at a school teacher (at a traffic stop) because the officer did not also make verbal threats or physical contact.
  • And in more amicus brief news, IJ is asking an Indiana state trial court put a stop to a troubling new trend: the state—acting through a private prosecutor—conducting civil forfeitures in virtual secrecy by redacting basic information (including the names of the defendants, descriptions of the property being forfeited, and nearly all of the probable-cause affidavit required by state law) on court documents. That violates Indiana Supreme Court rules requiring openness in judicial proceedings and also the state's civil forfeiture statute, which requires prosecutors to publicly report the very data that's being withheld.

Judges can authorize a search of your home. But they aren't supposed to personally supervise the search themselves. Indeed, that's what a federal district court ruled recently, denying absolute judicial immunity to a Raleigh County, WV family court judge who forced her way into IJ client Matthew Gibson's home under threat of arrest so that his ex-wife could remove some disputed property, including DVDs and an umbrella stand. (The judge forbade Matthew from filming the search, which she conducted barefoot.) Now, IJ is asking the Fourth Circuit to uphold the district court's ruling. Click here to learn more. Or click here for a lovingly crafted podcast episode on the history of judicial immunity.

Free Speech

Slander Suit After "Two Wealthy … Men … Got Into a Fistfight While Trick or Treating with Their Families"

"Gimelstob and Kaplan were friends for a while, but their relationship soured when Kaplan got upset because Gimelstob did not show up to his birthday party."

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From Justice Brian Hofstadt's opinion Wednesday in Kaplan v. Gimelstob, joined by Justices Victoria Chavez and Patricia Benke:

In a display that a trial court characterized as "junior high and high school" conduct, two wealthy, middle-aged men—one [Gimelstob] a former professional [tennis player, and later a coach and "broadcaster, producer, talent representative, and brand ambassador"] and the other [Kaplan] a venture capitalist—got into a fistfight while trick or treating with their families on Halloween night 2018. The men have now moved their spat into the court system….

Gimelstob and Kaplan were friends for a while, but their relationship soured when Kaplan got upset because Gimelstob did not show up to his birthday party….

{Consistent with the applicable standard of review governing anti-SLAPP motions, we set forth [the following] facts in the light most favorable to Kaplan, as the nonmoving party.} On Halloween night in 2018, both Gimelstob and Kaplan were out trick or treating in Brentwood, which is an upscale neighborhood on the west side of Los Angeles, California. Kaplan was with his wife and their two-year-old daughter; Gimelstob, with his girlfriend and his five-year-old son. Gimelstob was dressed up as "Maverick" from Top Gun.

As Kaplan's wife and child were watching, Gimelstob "ambushed" Kaplan from behind and—"unprovoked and entirely without warning"—knocked Kaplan to the ground. Gimelstob mounted Kaplan's prone body, and proceeded to punch him 50 to 100 times. The attack lasted three minutes and ended only when a passerby pulled Gimelstob off of Kaplan….

The Los Angeles County District Attorney charged Gimelstob with committing a battery inflicting serious bodily injury, which is a crime that can be charged as a felony or a misdemeanor. The District Attorney charged it as a felony.

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Happy Thanksgiving!

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It's easy to take for granted all the good things we have—in our family lives, in our professional lives, in our nation, in the world—and focus on the bad. I hope that today all of you have much to be thankful for, as I very much do myself, and enjoy celebrating it.

Free Speech

Court Rules Against The Gateway Pundit's Request for Press Pass

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From today's decision in TGP Communications LLC v. Sellers by Judge John Tuchi (D. Ariz.):

TGP is an online news and opinion publication. Founded in 2004, TGP has developed a large readership and now averages more than two- and-a-half million readers daily. It describes itself as "a trusted news source for the stories and views that are largely untold or ignored by traditional news outlets." Mr. Conradson is a reporter with TGP who covers Arizona politics. Neither TGP nor Mr. Conradson are shy about their libertarian conservative political leanings. Mr. Conradson testified that his favorite political party is the Republican Party "but I wear that on my sleeve." He noted that his readers understand his political views: "everybody who reads my work knows that I am very transparent about it."

On September 27, 2022, Mr. Conradson applied for credentials to attend press conferences given by Maricopa County officials and to access certain County facilities. The County requires reporters to obtain such credentials—a "press pass"—in order to attend press conferences at, or otherwise enter, the Maricopa County Tabulation and Election Center ("MCTEC") and the tenth floor of the County Administration building in Phoenix, Arizona.

Roy Fields Moseley, the Communications Director for the County, explained that the County instituted the press-pass requirement in light of logistics and security concerns. For example, the Board of Supervisors' conference room on the tenth floor of the County Administration building can accommodate approximately 50 seats for reporters; after the extensive media interest in the 2020 election in Maricopa County, Mr. Moseley testified it was fair to say that they were anticipating there would be a lot more people wanting to attend press conferences. He also testified that there were security issues at MCTEC after the 2020 election, including an incident in which

[s]everal people were not members of the media but perhaps might say they are, but they are not what we would call news reporters. They managed to follow legitimate news crews into the lobby of MCTEC. This was a security concern. They had to be removed. There was a large crowd gathered outside and we didn't want a repeat of that type of situation when we came up on 2022.

The County also has installed temporary and permanent fencing at MCTEC, where the Maricopa County Sheriff's Office maintains security.

Reporters can apply for a press pass through a page on the County's website. The webpage states that "[t]he official press pass will allow members of the press to attend news conferences or enter the Elections Department's office to conduct interviews, take photos, and/or video." The webpage states that the County evaluates "member of the press" based on the following criteria:

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American Indians

"What's Missing in the Brackeen Argument: An Indian Affairs Clause"

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I was chatting with Prof. Lorianne Updike Toler (Northern Illinois), and she mentioned some thoughts of hers on this subject, based on her recent University of Chicago Law Review article, The Missing Indian Affairs Clause. I encouraged her to write up a blog post, and she kindly passed along the following:

In the November 9th oral argument for Haaland v. Brackeen, which challenges the constitutionality of the Indian Child Welfare Act, Justice Amy Coney Barret's question about the impact of overruling Congress' plenary power over tribes underscores a centuries-old confusion about federal Indian Affairs.

It's not just the Court that is confused. Former Volokh Conspiracy posts on point reveal the deep academic fissures over the historical context of the Indian Commerce Clause. Unknown to the Court and most of academe is the root cause of all the confusion: that the Constitutional Convention initially forgot (and then later intentionally excluded) the Articles of Confederation's Indian Affairs Clause in the Constitution.

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Nondelegation

The Horseracing Case, Part 3: How Carter Coal Is Misunderstood

Despite a recent Fifth Circuit case, Carter v. Carter Coal Co. (1936) doesn't limit private delegations.

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This is one of a series of posts on the Fifth Circuit's recent "private nondelegation case", National Horsemen's Benevolent & Protective Ass'n v. Black, where it struck down the Horseracing Integrity and Safety Act for delegating power to a private organization, the Horseracing Integrity and Safety Authority. In Monday's post, I explained how A.L.A. Schechter Poultry Corp. v. United States (1935), the main case that proponents of a "private nondelegation doctrine" usually rely on, gives no support to any view that delegations are judged more harshly if the recipient of the delegation is private instead of public. And in Tuesday's post, I talked about how the Supreme Court upheld private delegations four times between 1905 and 1939, and cited two of those cases in Schechter Poultry as examples of cases where private delegation was unproblematic; unfortunately it mischaracterized Schechter Poultry a few times in the 1940s as being about private delegation, but fortunately that was dictum.

Today, I'll talk about the second case that people often rely on when they want to argue that there's a rule against private delegations: Carter v. Carter Coal Co. (1936). Just like Schechter Poultry, this case has been widely misunderstood: (1) if you read it as an Article I Nondelegation Doctrine case, it doesn't support any special rule against private delegations; (2) it's probably best read as a Due Process case (based on the presence of financial bias); (3) if you read it as a Due Process case, it likewise doesn't support any special rule against private delegations.

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Free Speech

Libel Lawsuit Filed over Finding Kendrick Johnson Documentary

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From a Complaint filed today in Bell v. Pollock (paragraph numbers omitted):

On July 30, 2021, the documentary film Finding Kendrick Johnson (the "Documentary Film") was first released, and by December 27, 2021, it was available for internet users to stream on multiple online platforms…. The Documentary purports to tell the story of the murder of Kendrick Johnson (the "Decedent"), a Lowndes County High School student whose body was discovered in a rolled-up gym mat in the high school's gym in January 2013.

Defendants maliciously exploited the mysterious death of the Decedent and the imagery and controversy surrounding the Decedent's death to fabricate a wholly false narrative and profit financially by painting the Bells as modern-day versions of those responsible for one of America's most brutal and infamous hate crimes. The Documentary Film represents that the Decedent's death was a murder. The Documentary Film further portrays that the murder was the result of criminal acts committed by Brian and Branden, two other Lowndes County High School students who it represents had "problems" with the Decedent around the time of his death. Defendants present the central thesis of the film, which is that the Decedent's murder was a second iteration of the horrific, racially motivated murder of Emmett Till….

[T]he Documentary propagates a conspiracy theory that the Decedent's death was improperly ruled an accident, and it claims that Rick, the father of Brian and Branden, who worked as an FBI agent, engaged in a cover up operation to conceal his sons' involvement in the Decedent's murder.

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Guns

Court Blocks N.Y.'s Requirement of Express Owner Permission to Carry Guns on Private Property

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From a decision today by Judge John Sinatra (W.D.N.Y.) in Christian v. Nigrelli:

Another one of New York's new restrictions imposed in the immediate aftermath of the Supreme Court's Bruen decision is the private property exclusion. That new provision makes it a felony for a license holder to possess a firearm on all private property, unless the relevant property holders actually permit such possession with a sign or by express consent….

Property owners indeed have the right to exclude. But the state may not unilaterally exercise that right and, thereby, interfere with the Second Amendment rights of law-abiding citizens who seek to carry for self-defense outside of their own homes. Thus, the motion for a preliminary injunction enjoining Defendants' enforcement of this private property exclusion is granted.

I have to run to class, but hope to have a bit more on this tonight or tomorrow. Congratulations to David Thompson, John Tienken, Nicolas Rotsko, and Peter Patterson of Cooper & Kirk, who represent plaintiffs. Note: One of the plaintiffs is the Firearms Policy Coalition, for which I sometimes consult; I wasn't involved in this case.

Nondelegation

The Horseracing Case, Part 2: Private Delegation Before and After Schechter Poultry

The Supreme Court has never held that private delegations have any special unfavorable treatment under the Article I Nondelegation Doctrine: quite the opposite!

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This is one of a series of posts on the Fifth Circuit's recent "private nondelegation case", National Horsemen's Benevolent & Protective Ass'n v. Black, where it struck down the Horseracing Integrity and Safety Act for delegating power to a private organization, the Horseracing Integrity and Safety Authority. In yesterday's post, I explained how A.L.A. Schechter Poultry Corp. v. United States (1935), the main case that proponents of a "private nondelegation doctrine" usually rely on, gives no support to any view that delegations are judged more harshly if the recipient of the delegation is private instead of public.

Today, I'll talk about private delegations before and after Schechter Poultry—the bottom line is that the Supreme Court has actually upheld private delegations on at least four occasions. Two of those were before Schechter Poultry, and Schechter Poultry actually mentioned them as examples of cases where private delegations were acceptable. Two of them were after Schechter Poultry. In two of the cases, the Court explained why the delegation was unconstitutional by analogizing the delegation to a delegation to a public party—which shows that the private nature of the delegate wasn't relevant. None of these cases—neither Schechter Poultry nor the other four—has ever been overruled, and some of them (particularly Schechter Poultry, which approved of two of those cases) continue to be cited regularly.

And this makes sense: the Article I Nondelegation Doctrine is about how Congress can't give up too much power; so far, the formulation it's used is whether the delegate is limited by an "intelligible principle". Provided that's present and Congress hasn't given up too much power, what does it matter who has been the recipient of the power? There might be other principles at work (I'm looking at you, Due Process Clause or Appointments Clause), but the Article I Nondelegation Doctrine doesn't seem to be one of them.

Alas, Schechter Poultry has been mischaracterized since then. In a couple of cases since Schechter Poultry, the Court has mischaracterized that case—when it has upheld a delegation, it has sometimes distinguished Schechter Poultry on the ground that it involved a private delegation. This was clearly wrong, but fortunately it's only dictum, and fortunately I've only found a handful of instances of this in Supreme Court caselaw. So the strongest case that there's a private Article I nondelegation doctrine stems from dictum in a couple of 1940s cases.

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