Uncovering the Fallacy of the Federal Private Nondelegation Doctrine, Part 5

Serial-blogging my Law Review piece that just came out in Notre Dame Law Review, I continued on Tuesday through Thursday, and today’s the last installment. This is timely, especially due to the pending Fifth Circuit case (with an amicus brief I filed). Part II.B explains the absence of nondelegation doctrines specific to private parties—focusing on separation-of-powers theories like the Appointments Clause. No Private Due Process Doctrine Here, focus on bias branch of due process. In some ways, due process doctrine is pro-privatization, where private parties are often nonstate actors not bound by constitutional rights. Then, focus on cases where private parties exercise coercive power and are thus state actors subjected to due process. Under the bias doctrine, depriving someone of life, liberty, or property interest can’t be vested in someone biased—especially financially self-interested in the exercise of power. Caselaw doesn’t differentiate between public and private actors. State Action Doctrine Private parties generally aren’t “state actors,” exempt from almost all constitutional rights. The state action doctrine limits a public sphere where constitutional rights apply from a private sphere where constitutional rights don’t apply. Certain procedures, unconstitutional under public provision, are constitutional after privatization. Unlike public cases, state action doctrine doesn’t help the private delegate in some cases where the private party exercises coercive power. This constitutes a delegation to self-interested parties, violating due process because one person may not be entrusted with regulating another business, even more a competitor. Bias cases treat private self-interested parties like public actors, all related through a common skepticism of self-dealing. Private Cases: Just like Public Cases Private self-interested neighbors, creditors, tenants, and coal industry participants are treated like public actors related to a common skepticism of self-dealing. Sources of bias other than direct financial self-interest also apply to private delegation. Indirect bias and sources of bias, other than direct financial self-interest, apply to private delegations. Private prosecutors appointed to prosecute criminal contempt should be as disinterested as public prosecutors. Similarly, private parties’ only power is to invoke legal processes, which tactically wield substantial coercive power. The private prosecutor’s biased behavior can’t be adequately policed by the later due process.