The Myth of the Federal Private Nondelegation Doctrine

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Alexander Volokh*

Judges and scholars have often claimed that delegations of governmental power to private parties are constitutionally prohibited.  However, such a “private nondelegation doctrine” is elusive, if not nonexistent.

To understand why, first we need to realize that there are actually several distinct nondelegation doctrines.  I develop a taxonomy that makes sense of these various doctrines by focusing on the different reasons why a delegation might be problematic.  A nondelegation doctrine might be “giver-based” (can Congress delegate this power?), “recipient-based” (can the recipient exercise this power?), or “application-based” (will the application of this power be unjust?).

Once we distinguish these doctrines, it becomes apparent that none of them rules out private delegations.  On the contrary, some doctrines actually facilitate privatization, because they provide that certain private delegations are exempt from certain constitutional requirements.  As for the other doctrines, they do not embody any categorical antiprivate rule.

Private status may be practically relevant in some cases, because the factors that matter to the various doctrines (e.g., how much a delegate is constrained, or the presence of bias) might tend to play out differently between the public and private sectors.  But this is an empirical question; the same factors can in principle also invalidate public delegations; and attentiveness to these factors shows how to structure private delegations so they are constitutionally permissible.  Constitutional law should continue looking to specific objectionable factors rather than the formal public-versus-private question.

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© 2023 Alexander Volokh.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Associate Professor, Emory Law School, avolokh@emory.edu.  I thank Thomas C. Arthur, Benjamin Farley, Tonja Jacobi, Matthew Lawrence, Kay L. Levine, Jonathan R. Nash, Mark Nevitt, Polly J. Price, Matthew Sag, George B. Shepherd, Fred Smith, Jr., and Martin W. Sybblis for their comments, and Patrick Dunlap for his research assistance.