Protecting the public from the private? Disenchantment over the private nondelegation doctrine

ABSTRACT Under the pervasive public–private collaborative governance, people increasingly and constantly feel the strong power and control of industrial, financial, high-tech giants, from Cradle to Grave. Pressed by the public’s concern against these private entities, Politicians and lawyers can use antitrust toolbox to combat these giants’ monopolistic interest. But what if some of them gain competitive advantage from sharing regulatory power with the government? In the recent Amtrak cases, judges and commentators have brought a relatively less mentioned constitutional doctrine, the private nondelegation doctrine, back into discussion, hoping it can prevent the government from wielding power without owning up to consequence. Going thoroughly through important private nondelegation cases decided by the US Supreme Court, it’s hard to conclude a systematic inquiry of private nondelegation doctrine. The Court allows the private entities to participate as the ‘advisory or subordinate role’ in the administrative process, so long as the government seize the final control over the regulatory process. Yet, all private nondelegation precedents haven’t constituted a persuasive private nondelegation inquiry. Indeed, how much involvement may a private entity have in the administrative process before its advisory role trespasses into an unconstitutional delegation? In a formalistic approach, it’s usual to get bogged down in definition and drawing line. But from a functionalist perspective, to secure the government’s final control and protect the public interest from private entities’ self-interest, we can embrace a comprehensive and structural inquiry constituted by multiple constitutional doctrines, including but not limited to the Due Process Clause, the Appointments Clause, the State Action Doctrine, and the Private Nondelegation Doctrine.