by Sydnie Caster*

Although the Supreme Court has not invalidated a private delegation since 1936, debate around the constitutionality of private delegations has persisted among scholars and courts. Circuit courts are split regarding the constitutionality of the private delegation in the Horseracing Integrity and Safety Act (“HISA”). The debate regarding the constitutionality of HISA is rooted in a broader discussion about the legality of private delegations in relation to separation of powers principles. There are two principal theories of separation of powers: functionalism and formalism. The functionalist approach focuses on how government works in practice, weighing the overall balance of power between branches of government. The formalist approach focuses on the text of the Constitution and endorses strict separation of roles for each branch of government. This Contribution argues that courts should adopt a functionalist approach to evaluating private delegations in order to preserve the flexibility and expertise necessary for effective modern governance, while ensuring political accountability and preventing self-interested regulation by private entities.

The federal government is tasked with achieving policy goals that require expertise to attain. Congress and administrative agencies occasionally lack the time, resources, and expertise needed to fulfill the obligations of modern governance. However, constituents expect policy goals to be completed quickly and with a high level of expertise. Fields like technology, health, and science are evolving faster than the knowledge possessed by Congress and the administrative state. As a result, Congress has delegated some rulemaking and enforcement authority to private actors for faster and more competent achievement of policy goals.1 Despite the efficiency and expertise benefits of private delegations, debate around its constitutionality has persisted among courts and legal scholars.

The nondelegation doctrine limits Congress’s ability to delegate its Article I legislative powers to another branch of government, primarily the executive branch if there is not an intelligible principle.2 Within the broader principles of the nondelegation doctrine is the private nondelegation doctrine. The private nondelegation doctrine originated in the early twentieth century through Supreme Court New Deal cases addressing the constitutional limits on private parties exercising government regulatory power.3 The doctrine is rooted in addressing the due process and separation of powers concerns that arise when a private entity, rather than the government, exercises power under a statutory scheme to advance its own financial or personal interests.4

The private nondelegation doctrine reinforces separation of powers by ensuring that legislative power remains within the legislative branch rather than allowing Congress to transfer it to a private entity.5 However, the Constitution does not categorically bar any delegation of power to a private entity.6 When deciding whether a private entity’s vested powers violates the private nondelegation doctrine, courts examine if the private entity is subordinate to a governmental entity that possesses authority over the entity’s execution of the law.7 The legislature can grant authority to private entities only if it creates proper standards, guidelines, and procedural safeguards.8 If a private entity creates the law whole cloth or possesses full discretion over the law, that is an unconstitutional exercise of federal power under Article I by a non-governmental entity.9 Thus, a private entity can wield government power only if the private entity functions subordinately to a public agency exercising oversight and final authority.10

Although the Supreme Court has not invalidated a statute under the private nondelegation doctrine since 1936,11 scholars and judges continue to debate the contours of the doctrine.12 For example, circuits are split on how to apply the private nondelegation doctrine to the enforcement powers granted to a private entity under the Horseracing Integrity and Safety Act (“HISA”).13 HISA created an independent Horseracing Anti-Doping and Medication Control Authority (“Authority”) to develop and enforce a “uniform anti-doping and medication control program” in the horseracing industry.14 The Fifth Circuit held that the Authority’s rulemaking authority was constitutional, but that its enforcement authority was unconstitutional under the private nondelegation doctrine as the Authority was not properly subordinate to the Federal Trade Commission (“FTC”), the supervising agency.15 By contrast, the Sixth and Eighth Circuits held that the Authority’s rulemaking and enforcement authority was constitutional because the FTC maintained adequate oversight and final decision-making authority pursuant to the enacting statute.16

In June 2025, the Supreme Court vacated all three decisions and remanded the HISA cases back to the Fifth, Sixth, and Eighth Circuits for further evaluation in light of its ruling on the private nondelegation doctrine in FCC v. Consumers’ Research.17 Under Consumers’ Research, if the HISA is subordinate to the FTC, then the private delegation should be deemed constitutional.18

The circuit split over the HISA’s authority is a quintessential example of the tension between functionalism and formalism. At the core of the circuit split is the question of what qualifies as subordination.19 Within that broader debate lies a more specific question about how the enforcement powers of private delegations should be reviewed by courts. The Fifth Circuit endorse a formalist approach because executive functions such as investigating, subpoenaing, and bringing suit are “quintessentially executive functions” that should not be held by private actors in the name of the federal government.20 Meanwhile, the Sixth and Eighth Circuits endorse a functionalist approach when evaluating the enforcement powers of private entities.21 The Sixth Circuit held that “the FTC could subordinate every aspect of the Authority’s enforcement” through its rulemaking authority or issue rules regulating how the Authority enforces HISA.22 Thus, the circuit split is rooted in the debate between functionalism and formalism: The Fifth Circuit prioritizes structural boundaries about who can exercise governmental power, while the Sixth and Eighth Circuits emphasize the practical way federal control and oversight can manifest in private delegations.

The formalist approach categorically opposes private delegations because it posits that constitutionally assigned powers must be exercised only by the assigned branch. Meanwhile, the functionalist approach supports private delegations because it prioritizes practicality, expertise, and efficiency over strict adherence to separation of powers.23 When evaluating the validity of private delegations under the private nondelegation doctrine, courts should apply a functionalist approach because it provides the flexibility and expertise necessary for effective modern governance, while still ensuring political accountability and preventing self-interested regulation by private entities.

The formalist approach holds that private delegations are categorically unconstitutional because they are not supported by the text, history, or structure of the Constitution.24 Formalists argue that private delegations would violate the text of the Constitution25 and that rulemaking and enforcement authority are historically governmental functions, not private functions.26 Formalists also argue that the Constitution’s Vesting Clause allocates all judicial, legislative, and executive powers to the respective three branches of government and that this allocation prohibits delegating power to private entities.27

The formalist approach is also rooted in the Due Process Clause of the Fifth Amendment, which prevents Congress from granting unchecked legislative power to a private entity that may have a financial interest or incentive to shape regulations for their own advantage self-deal.28 The due process concern is mainly evident in the enforcement power of private entities because of a lack of procedural protections and the threat of self-interested biased decision-making. Procedural due process guarantees the right to a neutral and impartial decision-maker in proceedings where an individual is deprived of their life, liberty, or property.29 When Congress gives a private entity enforcement and rulemaking power over its competitors, the private entity may have competitive motives to maximize its own benefit while minimizing benefits to its competitors, thus violating the guarantee of due process.30 For example, in Carter v. Carter Coal Co., the Supreme Court invalidated a statute allowing coal producers to set the minimum wage and hours requirements for the entire coal industry because the private regulators were participating in the coal industry, calling it “legislative delegation in its most obnoxious form.”31 Ultimately, the formalist approach would find all private delegations categorically unconstitutional under either the Vesting Clause and Due Process Clause.32

In contrast, the functionalist approach allows for some private delegation by recognizing the need to respond to changing societal circumstances with flexible government structures.33 Although a functionalist approach does not categorically endorse private delegations, it does give Congress the flexibility to legislate through private delegations if it so chooses.34 For a private delegation to be constitutional, the functionalist approach requires sufficient oversight and that the statute delegating authority makes clear that a government agency retains final decision-making authority over the private entity.35 For example, in Oklahoma v. United States, the Sixth Circuit found that HISA did not violate the private nondelegation doctrine because the FTC maintained sufficient and final decision-making authority over HISA.36 Functionalism therefore supports a private delegation so long as a government agency retains sufficient oversight and final decision-making authority.37

First, courts should adopt a functionalist approach when evaluating private delegations because it preserves the flexibility and expertise necessary for modern governance. Modern governance demands policy tasks and decisions that require a specialized technical expertise that Congress lacks.38 A functionalist approach recognizes the reality that Congress lacks technical expertise and that private delegation can benefit the public by increasing Congress’s ability to effectively legislate.39 Functionalism focuses on how the delegated power is structured, balanced, and executed to improve policy outcomes while preserving the necessity of public oversight.40 Instead of categorically prohibiting all private delegations, the functionalist approach empowers courts to inquire whether a private delegation leverages expertise for policy implementation or instead transfers coercive authority to a private actor with improper incentives.

The Supreme Court implicitly endorsed the expertise rationale when analyzing private delegations in Sunshine Anthracite Coal Co. v. Adkins.41 There, the Court found that the government could rely on the support and recommendations of private coal producers not only because the National Bituminous Coal Commission retained final decision-making authority and the private delegation was clearly detailed in a statutory framework, but also because the industry expertise provided by the Commission was functionally necessary for legislation to be responsive to the challenges in the industry.42 The expertise was necessary because the coal industry was complex and volatile due to the Great Depression.43 For the Court, the danger was not the private delegation per se, but rather private actors wielding unreviewable coercive power.44 In Adkins, the Supreme Court implicitly employed functionalism by recognizing the need for private expertise and allowing the private delegation to stand so long as the government retained sufficient oversight and decision-making authority.45

Federal agency expertise combined with the expertise of private actors creates policies that are better suited to serve the public interest. The private actors bring industry knowledge while the federal agencies bring a legislative apparatus to effectuate tailored policy goals for industries. For example, in Adkins, the private coal producers worked alongside the federal government to regulate the coal industry.46 The private coal producers provided technical industry knowledge and expertise of the coal industry, while the National Bituminous Coal Commission provided government oversight and constitutional authority to effectuate private coal producers’ recommendations.47 Adkins demonstrates how cooperative regulatory schemes can improve regulation when the government retains final decision-making authority, particularly where effective economic policy in complex industries can benefit from the expertise of parties in the industry.48 This collaboration between government and experts in the industry is a partnership of expertise to serve the public interest, rather than a transfer of power.

Since Adkins, circuit courts have continued to allow statutes to authorize private actors to propose regulations, perform ministerial duties, and provide support to Congress and federal administrative agencies.49 Moreover, the practice of asking and obtaining advice from third parties is not unique to private delegation. The judiciary can seek recommendations from special masters, and Congress is heavily influenced by legislative staff, committees, and private lobbyists.50 By using the functionalist approach to evaluate private delegations, courts can harness expertise to respond to complex challenges.

Second, a functionalist approach to evaluating private delegations allows courts to address the core constitutional concerns of procedural due process without categorically banning private delegations. These constitutional concerns are overlapping and stem from the principle that the Constitution binds public power, not private power.51

Private delegations, if unchecked, threaten to infringe upon procedural due process. Procedural due process requires fair procedures before the government can deprive someone of life, liberty, or property.52 The Supreme Court has interpreted the Due Process Clause to ensure fundamental fairness by requiring disinterested and unbiased decisionmakers.53 The Due Process Clause only applies to state action; therefore, if the private entity’s actions are governmental in nature, it logically follows that the private entity should be subject to constitutional requirements.54 However, this is not the case. The government avoids constitutional guarantees by delegating power to private entities which are not subject to provide constitutional guarantees.55 Private actors are not bound by the Constitution’s procedural guarantees, and so, there is a threat of coercive power that they may deny hearings, lack neutrality in decision making, or refuse to give notice to parties.56 Private delegations allow private actors to exercise rulemaking and enforcement authority that directly impact the life, liberty, and property interests of others, usually within the same industry in which the private actor operates.57 For example, the HISA statute grants power to the Authority, private actors from the horseracing industry, to investigate, issue subpoenas, and impose sanctions for doping in the horseracing industry.58 If a private actor has control over issuing subpoenas and sanctions, people may be deprived of life, liberty, and property without due process.59 Thus, private delegations raise due process concerns especially when private actors are biased and use coercive authority to pursue their own personal interests.

The threat of private self-dealing raises due process concerns because it conflicts with notions of fairness.60 This concern is especially salient when Congress delegates authority to private actors to exercise authority over the same industry in which they participate. In both Eubank v. City of Richmond61 and Washington ex rel. Seattle Title Trust Co. v. Roberge,62 the Supreme Court was concerned about private property owners “control[ling] and dispos[ing] of the proper rights of others” “for their own interest,” in violation of the Due Process Clause.63 In Seattle Title Trust Co., the Court noted that not only was there a threat of self-interested dealing, but there was also no legal review or recourse for someone injured by the private property owners.64 If a private delegation is not sufficiently subordinate to a government agency, it could undermine due process by self-dealing at the expense of the life, liberty, and property of the rest of the industry.

Private delegations also raise concerns about political accountability. In the United States, voters can hold the government accountable through elections.65 However, private actors do not have an electoral check granted by the Constitution.66 Beyond constitutional limitations, a main source of accountability of public delegations is the Administrative Procedure Act (“APA”).67 However, private delegations do not have such a structured and clear level of accountability.68 Under a formalist view, there is no concern for accountability in private delegations because private delegations are unconstitutional and per se barred.69 Under a functionalist view, private delegations preserve accountability because they only shift responsibility, not power.70 The power remains with the government that remains accountable for the actions of the private entity.71 While never explicitly clarified by the Supreme Court, Adkins indicates that private delegations may be sufficiently politically accountable as long as government agencies retain final review authority.72

A categorical prohibition of private delegations would avoid the core constitutional concern of self-dealing but would have serious repercussions for modern governance. The repercussions include delayed regulation, congressional overload, and loss of technical expertise.73 All private delegations do not raise bias and due process concerns, and functionalism allows for the flexibility to distinguish between private delegations that are threats to constitutional structure versus subordinate private delegations.74 Functionalism offers a solution by avoiding the rigid definition of legislative power and instead investigating whether there is a conflict of interest resulting in undeserved gain for private actors. If the government agency retains final decision-making authority, this ensures private delegations cannot self-deal and that public power ultimately remains in the hands of government officials who are politically accountable.75 The government agency becomes a necessary check on the power exercised by private actors. Moreover, if final decision-making authority is retained by a government agency, due process protections will remain intact because government officials are bound by the Constitution.76

A major critique of the functionalist approach is that it ignores constitutional structure and separation of powers principles because Article I of the Constitution prohibits Congress from delegating power to private non-governmental actors.77 Article I, Section 1 of the Constitution states that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”78 In Gundy v. United States, Justice Gorsuch in dissent wrote that “[i]f Congress could pass off its legislative power to the executive branch, the ‘[v]esting [c]lauses, and indeed the entire structure of the Constitution,’ would ‘make no sense.’”79 Under the formalist view, if Article I prohibits Congress from granting power to a public government official, it then follows Article I is certainly a prohibition on Congress granting power to a private entity.80 However, the functionalist approach emphasizes a separation of powers framework that supports balance rather than strict categorical determinations.81 Justice Jackson, in a concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, argued “[w]hile the Constitution diffuses power . . . it also contemplates that practice will integrate the dispersed powers into a workable government.”82 Further, functionalism embraces flexibility to meet the evolving needs of the government and society while protecting democracy.83

Courts should use a functionalist approach in evaluating and validating private delegations, particularly because of its ability to contribute to a workable government that is responsive to the needs of modern governance. The core constitutional issue with private delegations is not the use of private actors or private delegations per se, but how the delegation of authority is structured.84 For example, in Currin v. Wallace, a main consideration analyzed by the Supreme Court in validating the private delegation was the retention of final decision-making and ultimate control by a public agency.85 In contrast, in Carter, the main danger the Court found in invalidating the private delegation was that private coal producers imposed rules on competitors without public ultimate final decision-making authority or oversight.86 Currin and Carter illustrate that the core concern in private delegations is private actors exercising unreviewable coercive power, not whether the Constitution renders these delegations invalid per se.

According to Justice Breyer, “the Constitution demands . . . structural flexibility sufficient to adapt substantive laws and institutions to rapidly changing social, economic, and technological conditions.”87 Formalism’s emphasis on bright-line rules makes it ill-suited for our rapidly evolving modern world. The challenges our government faces regarding health, science, and technology require evolution and flexibility. The government needs insight from industry experts and the ability to disperse work efficiently. Private delegation is a practical and sensible way for the government to uncover expertise that is not easily accessible. A functionalist approach ensures that private entities participate in but do not exert too much control over the regulatory process. Courts should endorse a functionalist approach when evaluating private delegations because the approach preserves flexibility and expertise necessary for effective modern governance and addresses the core constitutional concerns of procedural due process, self-interested decision-making, and political accountability.

* Sydnie Caster is a J.D. Candidate (2026) at New York University School of Law. This Contribution is a commentary on the problem at the 2025 Willian B. Spong Moot Court Tournament hosted by William & Mary Law School. One of the questions presented was whether Congress violated the private nondelegation doctrine in granting rulemaking and enforcement powers to a private entity. This Contribution argues that when courts evaluate the validity of private delegations, they should adopt a functionalist approach to meet the demands of modern governance.

1. See Catherine M. Donelly, Delegation of Governmental Power to Private Parties: A Comparative Perspective 77 (Oxford Uni. Press, online ed. 2007) (“The primary aim of private delegation is to improve the operation of government by enhancing its efficiency or effectiveness.”); Gillian E. Metzger, Privatization as Delegation, 103. Colum L. Rev. 1367, 1369 (2003) (“Private entities provide a vast array of social services for the government; administer core aspects of government programs; and perform tasks that appear quintessentially governmental . . . .”).

2. Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 472 (2001).

3. See Eubank v. City of Richmond, 226 U.S. 137, 144–45 (1912) (striking down an ordinance that allowed private property owners to establish building lines).

4. U.S. Const. art. I, § 1.; U.S. Const. amend. V.; Carter v. Carter Coal Co., 298 U.S. 238, 311–12 (1936) (striking down a delegation to a private entity on Due Process grounds. The Court held, “The delegation is so clearly arbitrary, and so clearly a denial of rights safeguarded by the Due Process Clause of the Fifth Amendment, that it is unnecessary to do more than refer to decisions of this court which foreclose the question.”) (citing A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 537 (1934); Eubank v. Richmond, 226 U.S. 137, 143 (1912); Seattle Trust Co. v. Roberge, 278 U.S. 116, 121-122 (1928)).

5. Consumers’ Rsch. v. FCC, 67 F.4th 773, 795 (6th Cir. 2023) (“The private-nondelegation doctrine addresses the Constitution’s bar on the government’s delegation of ‘unchecked legislative . . . power’ to private entities.” (citation omitted)) (hereinafter “Consumers’ Rsch. I.”).

6. See FCC v. Consumers’ Rsch., 606 U.S. 656, 698 (2025) (“… (1) [A]n executive agency exercising only executive power, plus (2) a private entity exercising no government power (but merely giving advice) equals (3) a permissible constitutional arrangement.”) (hereinafter “Consumers’ Rsch. II.”).

7. Consumers’ Rsch I., 67 F.4th at 795 (“An unlawful delegation of authority to a private entity does not exist when the private entity “function[s] subordinate[] to the” agency while aiding the agency and the agency “has authority and surveillance over the activities of” the private entity.”) (citing Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 399 (1940)).

8. Ent. Indus. Coal. v. Tacoma-Pierce Cnty. Health Dep’t., 105 P.3d 985, 988 (Wash. 2005).

9. See Consumers’ Rsch I., 67 F.4th at 796 (the USAC, a private entity, is subordinate to the FCC, a government entity, because it acts as an advisor rather than a law maker).

10. See, e.g., id.; Consumers’ Rsch. II, 606 U.S. at 695 (“It is sufficient in such schemes that the private party’s recommendations (as is true here) cannot go into effect without an agency’s say-so, regardless of how freely given.”); Nat’l Horsemen’s Benevolent & Protective Ass’n v. Black, 53 F.4th 869, 881 (5th Cir. 2022).

11. See Carter, 298 U.S. at 311.

12. See e.g., Harold J. Krent, The Private Performing The Public: Delimiting Delegations To Private Parties, 65 U. Mia. L. Rev. 507, 513 (2011) (“In short, private parties’ exercise of unchecked decisional governmental authority cannot be squared with the constitutional structure.”). See also Jacob D. Charles & Darrell A.H. Miller, Violence and Nondelegation, 135 Harv. L. Rev. 463, 469 (2022) (“The private delegation doctrine is directly concerned with the government skirting its constitutional obligations by fobbing off its functions, like crime control and law enforcement, to private actors.”).

13. Nat’l Horsemen’s Benevolent & Protective Ass’n v. Black, 107 F.4th 415, 424 (5th Cir. 2024),cert. granted, judgment vacated, and remanded sub nom. Texas v. Black, 145 S. Ct. 2835 (2025).; Oklahoma v. United States, 62 F.4th 221, 231 (6th Cir. 2023), cert. granted, judgment vacated, 145 S. Ct. 2836 (2025); Walmsley v. Fed. Trade Comm’n, 117 F.4th 1032, 1040 (8th Cir. 2024), cert. granted, judgment vacated, 145 S. Ct. 2870 (2025).

14. Horseracing Integrity and Safety Act of 2020, H.R. 1754, 116th Cong. (2020).

15. See Black, 107 F.4th at 424.

16. See Oklahoma, 62 F.4th at 231; Walmsley, 117 F.4th at 1040.

17. Consumers’ Rsch. II, 606 U.S. at 660.

18. Id.

19. See Black, 107 F.4th at 426 (finding the Authority did not have adequate subordination). Cf. Oklahoma, 62 F.4th at 221 (finding that the HISA’s enforcement authority was sufficiently subordinate to the FTC).

20. Black, 107 F.4th at 428.

21. See Oklahoma, 62 F.4th at 231; Walmsley, 117 F.4th at 1040.

22. Oklahoma, 62 F.4th at 231 (emphasis omitted).

23. See generally William N. Eskridge, Jr., Relationships Between Formalism and Functionalism in Separation of Powers, 22 Harv. J.L. & Pub. Pol’y 21, 22 (1998) (defining the formalist and functionalist approach to evaluating separation of powers); James Rice, The Private Nondelegation Doctrine: Preventing the Delegation of Regulatory Authority to Private Parties and International Organizations 105 Cal. L. Rev. 539, 566–71 (2016).

24. Id.

25. Field v. Clark, 143 U.S. 649, 692 (1892) (“That [C]ongress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the constitution.”).

26. Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. 1490, 1502 n.53 (2021) (“One scholar has argued, for example, that ‘[u]nder a pure formalist approach, most, if not all, of the administrative state is unconstitutional’ because agency ‘rulemaking and adjudication’—the core functions of modern administrative agencies—are ‘inconsistent with the formalist model’”) (citing Philip Hamburger, Is Administrative Law Unlawful? 100–04 (2014)).

27. See Gary Lawson, Territorial Governments and the Limits of Formalism, 78 Cal. L. Rev. 853, 857–58 (1990) (“Formalists treat the Constitution’s three ‘vesting’ clauses as effecting a complete division of otherwise unallocated federal governmental authority among the constitutionally specified legislative, executive, and judicial institutions.”); see also U.S. Const. art. I, § 1 (“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”).

28. See e.g., Ass’n of Am. Railroads v. U.S. Dep’t of Transp., 821 F.3d 19, 31 (D.C. Cir. 2016) (quoting Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936)) (“We conclude, as did the Supreme Court in 1936, that the due process of law is violated when a self-interested entity is ‘intrusted with the power to regulate the business . . . of a competitor.’”). See also Paul J. Larkin Jr., The Private Delegation Doctrine, 73 Fla. L. Rev. 31, 68–69 (2021).

29. Edward J. Eberle, Procedural Due Process: The Original Understanding, 4 Const. Comment. 339, 339 (1987).

30. Carter, 298 U.S. at 311 (“[A] statute which attempts to confer such power undertakes an intolerable and unconstitutional interference with personal liberty and private property. The delegation is so clearly arbitrary, and so clearly a denial of rights safeguarded by the due process clause of the Fifth Amendment, that it is unnecessary to do more than refer to decisions of this court which foreclose the question.”).

31. Id.

32. Id.

33. Eskridge, supra note 23, at 21–22; Rice, supra note 23, at 566–71; see e.g., Panama Ref. Co. v. Ryan, 293 U.S. 388, 421 (1935) (“The Congress manifestly is not permitted to abdicate, or to transfer to others, the essential legislative functions with which it is thus vested . . . . The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply.”).

34. Martin H. Redish, Pragmatic Formalism, Separation of Powers, and the Need to Revisit the Nondelegation Doctrine, 51 Loy. U. Chi. L.J. 363, 369 (2019).

35. Consumers’ Rsch. II, 606 U.S. at 660.

36. See Oklahoma, 62 F.4th at 231.

37. See id. (taking a functionalist approach by examining the constitutional contours of the private delegation as opposed to strictly prohibiting under a formalist approach).

38. See Martha Kinsella & Maya Kornberg, Science-Poor Congress Needs More than Google Searches for Tech Legislation, Brennan Ctr. for Just. (Dec. 14, 2023), https://www.brennancenter.org/our-work/analysis-opinion/science-poor-congress-needs-more-google-searches-tech-legislation (“[C]ongress is science-poor. The lack of scientific understanding and expertise cramps policymaking, with terrible effects on the country.”).

39. See generally Thomas W. Merrill, Rethinking Article I, Section I: From Nondelegation to Exclusive Delegation, 104. Colum. L. Rev. 2097, 2151–52 (2004).

40. Suzanne Prieur Clair, Separation of Powers: A New Look at the Functionalist Approach, 40 Case W. Res. L. Rev. 331, 333 (1989).

41. See Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 398 (1940).

42. Id. at 398–400.

43. Henry S. Sahm, Labor Provisions of the National Bituminous Coal Act, 46 Dick. L. Rev. 237, 237 (1942) (“The Bituminous Coal Act of 19371 was enacted by Congress in an effort to preserve the vast coal resources of the nation and to stabilize the bituminous coal industry. To achieve these purposes it set up a system of regulation which revolves around the establishment of prices for bituminous coal, the enforcement thereof and the promulgation of a code of fair-trade practices in order that the bituminous coal operators might realize, as nearly as practicable, their weighted average costs of production.”).

44. Adkins, 310 U.S. at 398–400.

45. Id.

46. Id. at 388 (describing the cooperative regulatory structure between private district boards and the National Bituminous Coal Commission).

47. See id. at 396–99 (“[I]n the hands of experts the criteria which Congress has supplied are wholly adequate for carrying out the general policy and purpose of the Act.”).

48. Id.

49. See e.g., R.H. Johnson & Co. v. SEC, 198 F.2d 690, 695 (2d Cir. 1952); United States v. Frame, 885 F.2d 1119, 1128–29 (3d Cir. 1989); Pittston Co. v. United States, 368 F.3d 385, 394–97 (4th Cir. 2004); Sorrell v. SEC, 679 F.2d 1323, 1325–26 (9th Cir. 1982). See also Oklahoma, 62 F.4th at 228–33; Walmsley, 117 F.4th at 1037–39.

50.See Wayne D. Brazil, Special Masters in Complex Cases: Extending the Judiciary or Reshaping Adjudication?, 53 U. Chi. L. Rev. 394, 394–95 (1986); Russell W. Mills & Jennifer L. Selin, Don’t Sweat the Details! Enhancing Congressional Committee Expertise Through the Use of Detailees, 42 Legis. Stud. Q. 611, 613–17 (2017).

51. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620 (1991) (citing Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172 (1972)).

52. Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

53. Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980).

54. David M. Howard, Rethinking State Inaction: An In-Depth Look at the State Action Doctrine in State and Lower Federal Courts, 16 Conn. Pub. Int. L.J. 221, 221 (2017).

55. Alexander Volokh, The Myth of the Federal Private Nondelegation Doctrine, 99 Notre Dame L. Rev. 203, 255–56.

56. Id. at 255 (“When a nonstate-actor private entity replaces a previously governmental entity, lots of constitutional protections no longer apply. . .[P]rivate parties that enforce federal law,[. . .], don’t have the same legal constraints that the executive branch has related to faithfully executing the laws.”).

57. See Carter, 298 U.S. at 311.

58. See Black, 107 F.4th at 429.

59. Volokh, supra note 55, at 237 (“Public actors will almost always be state actors, and private actors often won’t be; if so, procedural due process will apply to the public actors and not the private ones, and so public actors will be subject to constitutionally mandated procedures that private actors will evade.”).

60. See e.g., Carter, 298 U.S. at 311 (stating that delegating regulatory power to “persons whose interests may be and often are adverse to the interests of others in the same business” violates the Due Process Clause); Paul J. Larkin Jr., The Private Delegation Doctrine, 73 Fla. L. Rev. 31, 69 (“The principle of nemo iudex in causa sua—a Latin phrase that means “no one should be a judge in his own cause”—has deep roots in our law and underlies the due process rule that no one can adjudicate a case in which he has a financial interest.”). See also A. Michael Froomkin, Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution, 50 Duke L.J. 17, 153 (2000) (“The evil that the Carter Coal doctrine seeks to avoid is that of a private person being a judge or regulator, especially where there is a possible conflict of interest.”).

61. Eubank v. City of Richmond, 226 U.S. 137 (1912).

62. Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 121–22 (1928) (hereinafter “Seattle Title Trust Co.”).

63. Eubank, 226 U.S. at 143–44.

64. Seattle Title Trust Co., 278 U.S. at 121–23.

65. See Margaret H. Lemos, Democratic Enforcement? Accountability and Independence for the Litigation State, 102 Cornell L. Rev. 929, 937–40 (2017).

66. See Gillian E. Metzger, Privatization as Delegation, 103 Colum. L. Rev. 1367, 1369–70 (2003) (“A foundational premise of our constitutional order is that public and private are distinct spheres, with public agencies and employees being subject to constitutional constraints while private entities and individuals are not.”).

67. 5 U.S.C. § 702 (judicial review is available any “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action”); see id. § 701(b)(I) (“agency” is “each authority of the Government of the United States”).

68. Id.; See also Jody Freeman, Extending Public Law Norms Through Privatization, 116 Harv. L. Rev. 1285, 1306 (2003).

69. Freeman, supra note 68 at 1309.

70. See generally id.

71. Id.

72. See generally Adkins, 310 U.S. at 399 (rather than focusing on political accountability of private delegations, the Court instead focuses on subordination and generally upholds private delegations if the government entity retains final authority.).

73. See generally Donnelly, supra note 1.

74. See generally Rice, supra note 23.

75. See Adkins, 310 U.S. at 399 (holding that law-making is entrusted to the government entity because the government retains final-decision-making authority).

76. See Edmonson, 500 U.S. at 620 (government authority is subject to constitutional constraints).

77. David B. Froomkin, The Nondelegation Doctrine and the Structure of the Executive, 41 Yale J. on Reg. 60, 65 (2024).

78. U.S. Const. art. I, § 1.

79. Gundy v. United States, 588 U.S. 128, 155 (2019) (Gorsuch, J., dissenting) (citation omitted).

80. See Froomkin, supra note 77, at 65.

81. Clair, supra note 40, at 333.

82. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).

83. Clair, supra note 40, at 337.

84. Adkins, 310 U.S. at 399 (holding that if a private entity functions subordinately with the government agency retaining final decision-making authority the private delegation is valid).

85. See Currin v. Wallace, 306 U.S. 1, 15 (1939).

86. See Carter, 298 U.S. at 311.

87. Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 787 (2002) (Breyer, J., dissenting).