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Abstract

Since its earliest days, Congress has delegated lawmaking authority to Executive Branch officials. Over time, a body of Supreme Court caselaw, 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 power to private parties. The Supreme Court has addressed those delegations in only a few cases and struck down three of them, the last one in 1936 in Carter v. Carter Coal Co. 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 played that role, and the Court has not offered a rationale for its rulings 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 Chapter 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 the dynamic incorporation of private or foreign rules and private jails or prisons.

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