I started serial-blogging my work The Myth of the Federal Private Nondelegation Doctrine on Monday, which was recently published in the Notre Dame Law Review. I carried on with this on Tuesday and Wednesday and I’ll continue to do so today and tomorrow. This is timely due to the horseracing case in the Fifth Circuit at present with which I filed an amicus brief for the Reason Foundation and others.
Next up, I’ll discuss how there are no nondelegation doctrines specific to private parties, focusing on separation-of-powers theories such as the Appointments Clause.
If someone with “significant authority pursuant to the laws of the United States” is classified as an officer of the US and must be appointed through a presidential nomination plus Senate confirmation or via the President, courts, or heads of departments. The requirement of wielding significant federal authority is functional, and anyone designated “private” can, in fact, be an officer and require suitable appointment through this process, even if they are a member of a private corporation.
The Appointments Clause doesn’t pose a barrier to privatization or outsourcing. Regardless of who is involved- an employee, contractor, or someone else – anybody can equally receive federal power if they go through the appropriate constitutional appointment process.