What\u27s Left Standing? FECA Citizen Suits and the Battle for Judicial Review

This Article discusses standing to sue the FEC with two principal objectives. First, it attempts to frame the doctrinal inconsistencies between Lujan and Akins that have given rise to ongoing FECA standing litigation and concludes that the Supreme Court should acknowledge its repudiation of Lujan in cases seeking election-related information. Second, it explores the question whether courts may be statutorily required to consider citizen challenges to FEC enforcement actions as a matter of justiciability theory in the first instance, and concludes that courts should turn to the oft-overlooked Akins decision in lieu of Lujan in reviewing suits brought under citizen-suit statutes generally

Government by Contract and the Structural Constitution

Although private parties have performed government functions throughout most of Western history, mainstream administrative law scholarship is dotted with concerns over the extent to which modern federal government activities are outsourced to private contractors. Federal contractors routinely exercise authority that is classically “executive” in nature. They write regulations, interpret laws, administer foreign aid, manage nuclear weapons sites and intelligence operations, interrogate detainees, control borders, design surveillance systems, and provide military support in combat zones. Administrative law places few constraints on private contractors, and prevailing constitutional principles — the state action and private delegation doctrines, in particular — are either inept at holding private contractors to constitutional norms or utterly moribund. A common theme that appears in the vast literature on privatization, therefore, is accountability. There is no recognized constitutional theory that meaningfully prohibits Congress or the President from transferring significant amounts of discretionary governmental power to wholly private entities that operate beyond the purview of the Constitution, and there is relatively sparse scholarly analysis of the subject. This Article searches for a constitutional principle that could be employed to address hypothetical outsourcing arrangements that go too far for the American appetite. In that pursuit, it looks to the law governing independent agencies as a natural starting point for evaluating the propriety of outsourcing relationships from the standpoint of the structural Constitution. It then introduces two ideas with an eye toward sparking fresh thinking about the constitutionality of privatization: first, the notion that all actors exercising federal government power should be viewed along a constitutional continuum and not as occupying separate private/public spheres; and, second, that a democratic accountability principle may be derived from the Supreme Court’s recent decision in Free Enterprise Fund v. Public Co. Accounting Oversight Board, as a constitutional hook for addressing government-by-contract gone awry