Structural overdelegation in criminal procedure.

• Author: O'Rourke, Anthony
• Position: II. Overdelegation in Criminal Procedure C. Descriptive Limits through Conclusion, with footnotes, p. 438-474

3. DESCRIPTIVE LIMITS

   By defining overdelegation narrowly, the concept can be used to differentiate between delegation decisions that are normatively misguided and those that are simply irrational. This narrowing, however, comes at the cost of complete descriptive accuracy. In practice, the conceptual distinction between determining the content of a constitutional norm and crafting a set of doctrinal rules that successfully implement that norm often may be blurred. (115)

   First, a decision that appears to involve overdelegation may, in fact, be motivated by hostility to the right at issue. That is, a court may profess fidelity to a well-established constitutional objective but intentionally craft decision and remedial rules that permit law enforcement officials to undermine that objective. (116) Thus, the doctrinal rules will overdelegate authority with respect to the court's stated constitutional objective, but optimally delegate authority with respect to its actual objective. For judges hostile to constitutional interpretations that redound to the benefit of criminal defendants, this delegation strategy is an attractive option for achieving their substantive goals. As explained above, the Supreme Court stands in a principal--agent relationship to low-level officials in criminal procedure cases, in which the Court can control how much discretion to accord the officials but has relatively little power to monitor how the officials exercise that discretion. (117) Congressional delegation scholars have posited that, under a "blame-shifting" model of Congressional delegation, principals are more inclined to delegate power to agents when doing so will enable them to avoid responsibility for unpopular policy choices. (118) This principle helps explain why a Supreme Court Justice who is hostile to the rights of suspects and defendants might adopt a decision rule that empowers low-level officials to self-monitor their protection of a constitutional right rather than simply deny the existence of that right. Some constitutional criminal procedure rights are firmly entrenched in the public imagination, and a decision that repudiates these rights might create considerable backlash against the Court. (119) Such backlash may be less severe, however, if the Court continues to affirm the existence of the right but implements decision rules that ensure that the right is rarely protected. (120) In criminal procedure cases, the Court has the option to delegate the decision whether to honor a constitutional right to agents who have obvious incentives not to do so---police and prosecutors. A Supreme Court Justice who is hostile to the rights of suspects and defendants can reasonably expect these agents to share his political aims, and (all other things equal) can thus be expected to delegate power to them.

   Conversely, a set of doctrinal rules might appear to be optimal with respect to the Court's stated constitutional objective, but only because delegation pressures have influenced the judge's interpretation of the underlying constitutional right. (121) Instead of revising a decision rule in order to better obtain a constitutional objective, the judge might (consciously or otherwise) choose a different constitutional objective that is easier to implement. Thus, a judicial opinion that appears to be motivated by the Court's interpretation of a constitutional guarantee may in fact be motivated by delegation concerns. For example, consider the Supreme Court's decision in Perry v. New Hampshire. (122) In Perry the Court held that the Due Process Clause does not bar the use of unreliable eyewitness testimony in cases where police did not arrange the circumstances that rendered the testimony unreliable. (123) As a practical matter, this holding arguably gives prosecutors considerable leeway to introduce unreliable (but nonetheless persuasive) evidence that would be constitutionally barred in other circumstances. (124) Nevertheless, on its face the Court's holding does not suggest that the Court engaged in overdelegation. Instead, the Court simply determined that it had no constitutional authority to regulate the use of unreliable eyewitness identification evidence when the police had no role in rendering it unreliable, and constructed its doctrine accordingly. However, while the Court's holding was ostensibly based on the scope of the Due Process Clause, it also expressed concerns about endorsing a constitutional objective that would "open the door to judicial preview, under the banner of due process, of most, if not all, eyewitness identifications." (125) If this concern motivated the Court to adopt a view of the Due Process Clause with which it otherwise disagreed, then the decision in Perry would in fact be a form of overdelegation.

   These two forms of overdelegation--where the Court either does not say what it means or does not know what it means--are not detectable under a definition that draws a sharp distinction between a court's constitutional objective and its strategy for implementing that objective. In order to create the concept of overdelegation that captures such decisions, one would have to redefine it in terms of some fixed theory of constitutional interpretation rather than simply by reference to whatever constitutional theory the Court chooses for itself. Ultimately, there would be considerable value in defining a concept of irrational delegation that is rooted in a normative constitutional theory, as the concept may offer a richer and more descriptively accurate concept for critically analyzing judicial decisionmaking.

   However, the aim of this Article is simply to make the case that overdelegation is conceptually distinct from bad constitutional theorizing and that, given the structure of criminal procedure decisionmaking, it plausibly accounts for many of the Supreme Court's doctrinal choices in that area of law. For all its merits, a more robust concept of overdelegation would frustrate this aim by sparking theoretical disagreements about its normative underpinnings and inviting the accusation that the concept is merely a rhetorical device for condemning bad constitutional reasoning. The circumscribed concept of overde]egation presented here, by contrast, errs on the side of being underinclusive in order to avoid false positives-decisions that appear to be instances of overdelegation but which are actually rational delegation choices in light of the Court's constitutional objectives. The concept thus preserves a sharp distinction between disapproving of a court's delegation choices and disliking its constitutional aims.

   3. OVERDELEGATION'S STRUCTURAL SOURCES

   The possibility that the Supreme Court is likely to overdelegate power in criminal procedure cases, while perhaps intuitively obvious to those familiar with the doctrine, is theoretically puzzling. By definition, overdelegation is a suboptimal strategy for a court to achieve its constitutional aims. One would not, therefore, necessarily expect to see courts doing it systematically.

   Moreover, to the extent that courts do commit some sort of systemic delegation error in their decisionmaking, conventional wisdom suggests it would be one of underdelegation. This is because developing an effective delegation strategy requires courts to critically assess their own competence to construct decision rules that are likely to achieve their constitutional objectives, and compare it to the competence of law enforcement officials to achieve those objectives using the discretionary authority that is delegated to them. (126) Most institutional choice theorists assume the error one is most likely to commit when engaging in this type of comparative institutional analysis is to accord less deference to other institutions than a comparative institutional analysis would dictate. (127) As much as anyone (and probably more so), judges are susceptible to egocentric bias, which leads them to overestimate their own competence and decisionmaking ability relative to others. (128) Moreover, judges' goals often align with the interests of the courts on which they serve and, what's more, are partly shaped by those interests. (129) Traditional separation of powers theory thus assumes that a court's members will have "personal motives" to protect and enhance the institution's power vis-h-vis the executive and legislature-thus ensuring that "[a]mbition" is "made to counteract ambition." (130)

   The doctrinal trajectory of criminal procedure, however, invites the hypothesis that the Court systematically overdelegates discretionary authority to law enforcement officials in this area of law. It is therefore worth examining the structural features of constitutional criminal procedure that differentiate it from other areas of constitutional decisionmaking and analyzing whether they might incentivize the Supreme Court to delegate authority to law enforcement officials irrationally. Accordingly, this Part identifies four features of criminal procedure decisionmaking that, in conjunction, make it a structurally unique area of constitutional law. It also explores the ways in which these features incentivize the Supreme Court to delegate more power to law enforcement officials than the Court's constitutional objectives might warrant.

1. REGULATORY COMPLEXITY (AND SINGLE INSTITUTIONALISM)

   When an institution's members realize the limits of their organization's competence to address an issue, they may be prone to divest the institution of power without reflecting on whether any other institution is, in fact, more competent to address the issue. This error is an instance of what Nell Komesar describes as the fallacy of "single institutionalism." (131) Typically, the fallacy is associated with a failure to entrust other institutions with decisions that they are relatively well positioned to make. The structure of constitutional criminal procedure decisionmaking, however, creates the possibility...