The Volokh Conspiracy

The OpenAI corporate drama came to a sudden end last week. So sudden, in fact, that the pundits never quite figured out What It All Means. Jim Dempsey and Michael Nelson take us through some of the possibilities: It was all about AI accelerationists v. decelerationists. Or it was all about effective altruism. Or maybe it was Sam Altman's slippery ambition. Or perhaps a new AI breakthrough – a model that can actually do more math than the average American law student. The one thing that seems clear is that the winners include Sam Altman and Microsoft, while the losers include illusions about using corporate governance to ensure AI governance.

The Google antitrust trial is over – kind of. Michael Weiner tells us that all the testimony and evidence has been gathered on whether Google is monopolizing search, but briefs and argument will take a few months more – followed by years of  fighting about remedy if Google is found to have violated the antitrust laws. He sums up the issues in dispute and makes a bold prediction about the outcome, all in about ten minutes.

Returning to AI, Jim and Michael Nelson dissect the latest position statement from Germany, France, and Italy. They see it as a repudiation of the increasingly kludgey AI Act pinballing its way through Brussels, and a big step in the direction of the "light touch" AI regulation that is being adopted elsewhere around the globe. I suggest that the AI Act be redesignated the OBE Act in recognition of how thoroughly and frequently it's been overtaken by events.

Meanwhile, cyberwar is posing an increasing threat to civil aviation. Michael Ellis covers the surprising ways in which GPS spoofing has begun to render even redundant air navigation tools unreliable. Iran and Israel come in for scrutiny. And it won't be long before Russia and Ukraine deploy similarly disruptive drone and counterdrone technology. It turns out that Russia is likely ahead of the U.S. in this war-changing technology. That's according to China, which is following the field as closely as the Nazis followed air combat in the Spanish Civil War.

Jim brings us up to date on the latest cybersecurity amendments from New York's department of financial services. On the whole, they look incremental and mostly sensible.

Senator Ron Wyden (D-OR) is digging deep into his Golden Oldies collection, sending a letter to the White House expressing shock at his discovery of a law enforcement data program that the New York Times (and the rest of us) discovered in 2013. The program allows law enforcement to get call data but not content from AT&T with a subpoena. The only quasi-surprise here is that AT&T has kept this data for much longer than the industry-standard of two or three years and that federal funds have helped pay for the storage.

Michael Nelson, on his way to India for cyber policy talks, touts that nation's creative approach to the field, as highlighted in Carnegie's series on India and technology. He's less impressed by the UK's enthusiasm for massive new legislative tech initiatives. I argue that this is Prime Minister Rishi Sunak trying to show that Brexit really did give the UK new running room to the right of Brussels on data protection and law enforcement authority.

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Yesterday, I started serial-blogging my article, The Myth of the Federal Private Nondelegation Doctrine, which has just come out in the Notre Dame Law Review. I'll continue serial-blogging it here over the next couple of days. This is a timely issue, because of the horseracing case currently pending in the Fifth Circuit (in which I filed an amicus brief on behalf of the Reason Foundation and others). Here's Part I, explaining the variety of different delegation-related doctrines and providing a handy categorization. (Please be sure to refer to the real version if you want all the footnotes!)

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I. Our Many Nondelegation Doctrines

Nondelegation is easy to get wrong because there's more than one nondelegation doctrine.  Everyone knows about the classic doctrine—the one that's usually called the Nondelegation Doctrine, which derives from Article I's Vesting Clause.  But other doctrines also have implications for delegations, and the Supreme Court and others sometimes talk about them using the word "delegation."  This isn't wrong: these doctrines really are relevant to delegations.  But we shouldn't confuse these similar-sounding doctrines.

Here's a way to illustrate the different doctrines:

• Consider Gary Lawson's "Goodness and Niceness Commission" hypo. Congress passes a Goodness and Niceness Act, where section 1 outlaws transactions not promoting goodness and niceness, and section 2 lets the Commission promulgate regulations defining the content of the statute.  The problem is from the giver's side: Congress has given up too much power.
• Now suppose Congress creates specialized Article III courts and gives them jurisdiction over cases where plaintiffs lack standing, or that fall outside the Article III jurisdictional categories. Congress hasn't given up too much power; perhaps the set of cases is very narrowly defined (and maybe even there would be no problem with those cases being heard by non–Article III administrative tribunals).  The problem is that Article III courts are constitutionally prohibited from hearing such cases; i.e., the recipient lacks the power to act.
• Now imagine Congress tells an agency how to conduct adjudications. (The guidance is detailed, so Congress hasn't given up too much power, and the adjudications are within the agency's powers.)  Under that guidance, the parties are deprived of liberty or property interests with no notice or procedural rights.  The problem is that, for rights/‌justice/‌fairness reasons, individuals' rights under the Due Process Clause are being violated, i.e., the use of the delegated power is unconstitutional.  The same would be true with any other due process issue, like if the adjudicators received bonuses when they ruled against a claimant.  More generally, something about the application of the delegated powers would be improper.

This taxonomy divides nondelegation rules into three categories: (1) giver-based, i.e., don't delegate power that you can't grant; (2) recipient-based, i.e., don't delegate power to entities that can't exercise it; and (3) application-based, i.e., don't delegate power where the circumstances of its application will be unjust.  (Perhaps this third category is a residual category for everything not fitting into the other two.)  This Part looks at each in turn.

A. Giver-Based

1. The Article I Nondelegation Doctrine

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In the November 7 oral argument in U.S. v. Rahimi, the government conceded the fundamental difference between felonies and misdemeanors, which criminal defense and pro-gun attorneys will find useful.  Also, direct references were made by some Justices to the issue of non-violent felons who are not dangerous.  And on the separate state-law issue of whether administrative officials may have discretion to deny the right to bear arms, the government conceded that they do not.

Recall that under N.Y. State Rifle & Pistol Ass'n v. Bruen, a person who is among "the people" has Second Amendment rights, and conduct covered by the plain text of that Amendment is presumptively protected unless the state can satisfy its burden (yes, it's the government's burden) to demonstrate that the current gun control regulation is similar to valid historical analogue laws. In Rahimi, the issue is whether any Founding-era analogue laws exist to justify the federal gun ban against persons under a domestic violence restraining order (DVRO).

To uphold the ban, the government relies on laws that punished affrays, including the brandishing of weapons to terrify others, and laws that required persons who did so to find sureties to keep the peace.  Such laws are not "historical twins" to today's DVRO laws but are argued to be close enough.

A significant concession arising in the arguments would have jumped out at any member of the criminal defense bar, although it was not on the exact issue before the Court. The United States had argued in its briefs that persons who are not "law-abiding, responsible citizens" may be disarmed. Solicitor General Elizabeth Prelogar began her argument by saying that not being "law-abiding" means having "committed serious crimes defined by the felony-level punishment that can attach to those crimes."  Not being "responsible" "applies to those whose possession of firearms would pose an unusual danger."

Chief Justice Roberts asked whether a person who drives 30 in a 25 mile-an-hour zone is not "law-abiding."  The response was that the term does not include a "misdemeanor or minor criminal conduct under state law," but only "serious crimes."  Prelogar agreed that she was making a "misdemeanor/felony distinction," and that Rahimi did not have a "criminal record that would justify disarmament on that basis," but he was in the category of being a person who is not "responsible."

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My article, The Myth of the Federal Private Nondelegation Doctrine, has just come out in the Notre Dame Law Review. I'll be serial-blogging it here over the next couple of days. This is a timely issue, because of the horseracing case currently pending in the Fifth Circuit (in which I filed an amicus brief on behalf of the Reason Foundation and others). Here's the abstract and introduction. (Please be sure to refer to the real version if you want all the footnotes!)

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Abstract

Judges and scholars have often claimed that delegations of governmental power to private parties are constitutionally prohibited.  However, such a "private nondelegation doctrine" is elusive, if not nonexistent.

To understand why, first we need to realize that there are actually several distinct nondelegation doctrines.  I develop a taxonomy that makes sense of these various doctrines by focusing on the different reasons why a delegation might be problematic.  A nondelegation doctrine might be "giver-based" (can Congress delegate this power?), "recipient-based" (can the recipient exercise this power?), or "application-based" (will the application of this power be unjust?).

Once we distinguish these doctrines, it becomes apparent that none of them rules out private delegations.  On the contrary, some doctrines actually facilitate privatization, because they provide that certain private delegations are exempt from certain constitutional requirements.  As for the other doctrines, they do not embody any categorical antiprivate rule.

Private status may be practically relevant in some cases, because the factors that matter to the various doctrines (e.g., how much a delegate is constrained, or the presence of bias) might tend to play out differently between the public and private sectors.  But this is an empirical question; the same factors can in principle also invalidate public delegations; and attentiveness to these factors shows how to structure private delegations so they are constitutionally permissible.  Constitutional law should continue looking to specific objectionable factors rather than the formal public-versus-private question.

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