Private Delegation Research Articles

Efficiency of bilateral delegation in a mixed Cournot duopoly

AbstractWe consider a bilateral delegation mixed duopoly with quantity setting, where the objective function of the public managers is based on strategic manipulation of a Generalized Welfare Function. We show that such manipulation, coupled with strategic delegation by the private firm, enables the government to enforce an efficient outcome at equilibrium. When the manipulation/delegation choices and their sequence are endogenized, public manipulation and private delegation are supported at equilibrium, with the government, as first mover, setting the weights of the Generalized Welfare Function at the most efficient level consistent with private firm retaining a manager. This ensures maximum welfare, as compared with all other organizational structures.

The Private Delegation Doctrine

Since its earliest days, Congress has delegated lawmaking authority to Executive Branch officials. Over time, a body of Supreme Court case law, known as the Delegation Doctrine, has grown up (ostensibly) to regulate Congress’s ability to offload legislative authority to administrative agencies. Occasionally, however, Congress, like state legislatures and municipal councils, bypasses executive officials and directly delegates lawmaking authority to private parties. The Supreme Court has addressed those delegations in only few cases and struck down three of them, the last one in its 1936 decision in Carter v. Carter Coal Co., 298 U.S. 238. In those cases, the Court did not rely on the Article I Vesting Clause or separation of powers principles, as it has in the case of delegations to administrative agencies. Instead, the Court held the delegations unconstitutional by invoking the Due Process Clauses of the Fifth and Fourteenth Amendments. Nonetheless, the Court did not explain why the Due Process Clauses play that role, and the Court has not offered a rationale since 1936. Perhaps the reason for that omission is that the Court’s contemporary “procedure vs. substance” dichotomy has obscured the original meaning of the Due Process Clause: namely, a guarantee that the government comply with “the law of the land” before trespassing on someone’s life, liberty, or property. That guarantee, which reaches back to Article 39 of Magna Carta, means that the government cannot legislate around the Constitution by empowering a private party to act in a lawless fashion. Put differently, Congress cannot escape constitutional restraints by delegating government authority to private parties to accomplish indirectly what Congress cannot do directly. So viewed, the Private Delegation Doctrine continues to have vitality today in areas such as the constitutionality of private prisons.

The Source of the Stink: A Private Delegation Framework for Recidivism Risk Assessment

This paper explores the use of privately developed risk assessment algorithms in criminal sentencing, arguing that these tools are developed in a way that hinders the enforcement of constitutional protections and gives private algorithm developers undue influence in sentencing determinations. Using the private delegation doctrine, which limits Congress's ability to delegate to private actors, the paper aims to strengthen the state statutory frameworks that govern the use of these tools to restore accountability to the sentencing process.

“Undue” Delegation: Private Delegation And Other Strategies To Challenge Admitting-Privileges Laws

INTRODUCTION In November 2015, the Supreme Court granted certiorari to Whole Woman 's Health v. Cole (1) the first reproductive rights case to reach the court since Gonzales v. Carhart (2) eight years before. In the intervening time, states have passed an astonishing number of laws and regulations that encroach on women's access to abortion. Many such laws ostensibly aim to protect the woman and her fetus. Yet these same laws do so by imposing medically unnecessary and onerous procedural requirements on women, (3) which can erect massive barriers to abortion access for individuals. Other state laws aim to regulate not the activities of women, but those of abortion providers, who are not a protected class. The reproductive rights movement terms these laws Targeted Regulations of Abortion Providers, or TRAP laws. (4) State legislatures' passage of TRAP laws accelerated after the Supreme Court's decision in Carhart, which was taken to signal judicial willingness to uphold state laws that aim to protect an unborn fetus at the expense of reducing a woman's ability to choose. (5) This Note focuses on admitting-privileges laws, a type of TRAP law that requires physicians who provide abortions to obtain staff privileges at a hospital within a certain distance from their clinics. Without these required privileges, physicians performing abortions risk civil and criminal penalties. These laws are especially concerning because they give area hospitals an effective veto over a clinic's operations, effectively outsourcing the power to deny licenses to private entities. Admitting-privileges decisions are often discretionary for hospital administrators; a hospital's denial of admitting privileges also lacks state oversight or external appeals. Admitting-privileges laws are being ratified throughout many states, but have proven resistant to traditional substantive due process challenges. In addition to traditional undue burden analysis, a multipronged approach to reproductive rights litigation and advocacy is necessary. Part I of this Note sets forth a brief history of the right to choose an abortion and the current federal legal framework. Then, it details recent state legislative and ballot initiatives aimed at regulating abortion providers. Part II explains the complications of using the undue burden doctrine in constitutional challenges to state action, as illuminated by recent cases litigating admitting-privileges laws. It further introduces private-delegation challenges as an alternative method to examine the constitutionality of these laws. Part III looks at the history of private-delegation challenges with respect to admitting- privileges laws and touches on other possible avenues to challenge admitting-privileges regulations. I. Abortion in the Post-Roe Era In 1973, the Supreme Court decided Roe v. Wade, which recognized that the Due Process Clause of the Fourteenth Amendment protects a right to privacy that extends to a woman's decision to have an abortion. (6) Roe's effect was remarkable. Before Roe, each individual state regulated abortions and the accessibility thereof with their traditional police powers. At the time of the decision, four states had repealed anti-abortion laws, while thirteen had begun reforms of their abortion laws. (7) Almost all the rest banned abortion in most cases. (8) After the Supreme Court identified a right to choose an abortion grounded in the federal Constitution, the annual number of legal abortions rose through the 1970s, leveling off in the 1980s. (9) After Roe, the Supreme Court also decided Doe v. Bolton, (10) which assessed the elaborate procedural barriers to abortion erected by the state of Georgia and invalidated some of them for being not reasonably related to the state interest (11) or redundant. (12) Doe has been interpreted to signal that just as states may not prevent abortion by making the performance a crime, states may not make abortions unreasonably difficult to obtain by prescribing elaborate procedural barriers. …

The Real Homeland Security Gaps

This Article reveals the real security gaps in the Department of Homeland Security’s Federal Protective Service (“FPS”) and suggests that the excessive delegation of FPS’s vital security functions to private contractors should be treated as an unconstitutional delegation of an inherently governmental function. It presents the FPS mission of protecting critical federal infrastructure as a national priority that Congress recognized after 9/11 as vitally important to the nation’s homeland security. Despite this recognition, there has been widespread delegation of the FPS security function to private contractors. The Article considers the regulatory and constitutional law concerns raised by privatization, suggesting that excessive privatization of the FPS security function undermines core democratic precepts and therefore ought to be treated as an unconstitutional private delegation.

Government by Contract and the Structural Constitution

Although private parties have performed government functions throughout most of Western history, mainstream administrative law scholarship is dotted with concerns over the extent to which modern federal government activities are outsourced to private contractors. Federal contractors routinely exercise authority that is classically “executive” in nature. They write regulations, interpret laws, administer foreign aid, manage nuclear weapons sites and intelligence operations, interrogate detainees, control borders, design surveillance systems, and provide military support in combat zones. Administrative law places few constraints on private contractors, and prevailing constitutional principles — the state action and private delegation doctrines, in particular — are either inept at holding private contractors to constitutional norms or utterly moribund. A common theme that appears in the vast literature on privatization, therefore, is accountability. There is no recognized constitutional theory that meaningfully prohibits Congress or the President from transferring significant amounts of discretionary governmental power to wholly private entities that operate beyond the purview of the Constitution, and there is relatively sparse scholarly analysis of the subject. This Article searches for a constitutional principle that could be employed to address hypothetical outsourcing arrangements that go too far for the American appetite. In that pursuit, it looks to the law governing independent agencies as a natural starting point for evaluating the propriety of outsourcing relationships from the standpoint of the structural Constitution. It then introduces two ideas with an eye toward sparking fresh thinking about the constitutionality of privatization: first, the notion that all actors exercising federal government power should be viewed along a constitutional continuum and not as occupying separate private/public spheres; and, second, that a democratic accountability principle may be derived from the Supreme Court’s recent decision in Free Enterprise Fund v. Public Co. Accounting Oversight Board, as a constitutional hook for addressing government-by-contract gone awry.

Public Choice Theory and Occupational Licensing

Occupational licensing is now one of the most widespread and fastest growing forms of labor market regulation. Occupational licensing requirement generally are defended on the ground that they offset the information disparity between service providers and consumers by guaranteeing a minimal level of qualifications. Over time, however, a large number of federal government officials, scholars, and commentators have criticized the widespread use of occupational licensing requirements. They have argued that licensing requirements benefit licensees, not consumers, by helping to create a cartel that can avoid competition and raise prices. Public Choice Theory is a useful tool for analyzing licensing requirements because it applies microeconomic and game theory to the political process. Doing so gives rise to the remarkable irony that the justification for regulation has come full circle. Originally, the rationale was that government intervention would remedy economic market failures in furtherance of the public interest. Today, we see that government intervention causes political market failures in furtherance of private interests. Government has become the problem, not the solution.That conclusion justifies a re-examination of the constitutionality of many occupational licensing schemes. Then Supreme Court has been unwilling to re-examine the constitutionality of these programs since the new Deal, but there are two grounds that might prove useful. One is the Equal Protection Clause. It requires a rational basis for treating similarly situated people differently. Here, the argument would be that the basis for requiring licenses is due to the operation of political bribery and extortion, which is not a legitimate state interest. The second argument would be that many license schemes vest lawmaking authority in private parties, which the Private Delegation Doctrine forbids.

Health Care Reform and the Constitutional Limits on Private Accreditation as an Alternative to Direct Government Regulation

My goals are modest. First, I will draw upon my personal experience during six-and-a-half years at the Department of Health and Human Services (HHS) to make a few cultural observations about the agency in an effort to suggest why different parts of it approach private accreditation in different ways. Second, I will discuss some of the possible limitations on the use of private accreditation in the health care area, including the private delegation doctrine, a dormant area of constitutional law so treacherous that it seems to have appeal to both former Justice Brennan and Chief Justice Rehnquist as a vehicle for judicial activism.