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

Anonymity, Faceprints, and the Constitution

Part I defines anonymity and explains that respect for the capacity to remain physically and psychologically unknown to the government traces back to the Founding. With the advent and expansion of new technologies such as facial recognition technology (“FRT”), the ability to remain anonymous has eroded, leading to a litany of possible harms. Part II reviews the existing Fourth and First Amendment doctrine that is available to stave off ubiquitous government surveillance and identifies anonymity as a constitutional value that warrants more explicit doctrinal protection. Although the Fourth Amendment has been construed to excise surveillance of public and third-party information from its scope, the Court’s recent jurisprudence indicates a growing recognition that constitutional doctrine is out of step with modern surveillance technologies. The Supreme Court has expressly recognized a First Amendment right to anonymous speech, which should be taken into account in assessing the constitutionality of government surveillance systems under the Fourth Amendment. This Part accordingly draws a distinction between cases that arose in the pre-digital age, in which content was often collected through physical trespass or eavesdropping, and those arising in the digital age, in which correlations among disparate points of “big data” are used to make predictions. Part III argues that Fourth and First Amendment doctrine should be reconciled to address the manipulation — versus acquisition — of FRT data to derive new information about individuals which is exceedingly intimate and otherwise out of the government’s reach. This Part suggests that this qualitative shift in information gathering is constitutionally significant under existing doctrine. Part III also offers guidelines gleaned from the intersection of First and Fourth Amendment jurisprudence for consideration by lower courts and legislators as they address the threat of limitless surveillance which big data and new technologies present

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

We the People, Constitutional Accountability, and Outsourcing Government

The ubiquitous outsourcing of federal functions to private contractors, although benign in the main, raises the most fundamental of constitutional questions: What institutions and actors comprise the federal government itself? From Abu Ghraib to Blackwater, a string of scandals has heightened public awareness that highly sensitive federal powers and responsibilities are routinely entrusted to government contractors. At the same time, the American populace seems vaguely aware that, when it comes to ensuring accountability for errors and abuses of power, contractors occupy a special space. The fact is that myriad structural and procedural means for holding traditionally government actors accountable do not apply to private contractors exercising identical powers. This accountability vacuum is not remedied by prevailing constitutional doctrine, which ignores the realities of modern government by drawing an artificial line between the public and private spheres. I have thus argued previously that all private contractors should be viewed as anatomically related to other quasi-government entities such as independent agencies, residing along a single continuum of constitutional accountability. This Article builds on that premise by positing that private-public relationships be structured to ensure accountability as a matter of constitutional law

Defining Lawmaking Power

This Article teases apart the various permutations of what the federal lawmaking power means, canvases the Court\u27s historical treatment of that question, and describes its practical implications as a matter of both constitutional and administrative law. It proposes a taxonomy of lawmaking in an effort to bring coherence to the task of defining the lawmaking power as well as Congress\u27s prerogative to exercise it

Presidential Control of the Elite Non-Agency

This article examines the constitutionality of legislation creating a new form of independent agency – in effect, a “non-agency” agency residing in the no-man’s land between Articles I and II of the Constitution. In the Sarbanes-Oxley Act, Congress established the Public Company Accounting Oversight Board (“PCAOB” or “Board”) and endowed it with massive governmental powers while insulating it from traditional mechanisms for ensuring accountability. Congress deemed the PCAOB not an agency, rendered it substantially immune from judicial review, empowered Board members to set their own salaries and budget, and gave the embattled Securities and Exchange Commission – not the President – the power to appoint and remove Board members. In Free Enterprise Fund v. PCAOB, 537 F.3d 667 (D.C. Cir. 2008), the statute was challenged as violating the Appointments Clause of the Constitution and principles of separation of powers. The D.C. Circuit upheld the statute, with the dissenting judge calling it “the most important separation-of-powers case regarding the President’s appointment and removal powers to reach the courts in the last 20 years.” The Supreme Court has granted certiorari. This article considers the legal and normative implications of the PCAOB blueprint for future independent agencies, and explores the underlying constitutional tension between Congress’s power to restrict and channel agency administration and the President’s power to control it. It concludes that the prevailing analytic framework for evaluating challenges to novel agency forms is problematic as it reflects a myopic emphasis on presidential power per se. The article posits that a more justifiable standard may be fashioned by considering whether sufficient “checks and balances” operate to cabin a suspect independent agency’s actions without delving into thorny questions about the proper scope and definition of executive power

Public Laws and Private Lawmakers

The Obama Administration\u27s Clean Power Plan for addressing industrial carbon emissions is controversial as a matter of environmental policy. It also has important constitutional implications. The rule was initially crafted not by officers or employees of the Environmental Protection Agency, but by two private lawyers and a scientist with industry ties. Private parties operate extra-constitutionally, and no existing legal doctrine tethers constitutional scrutiny to the nature of the power delegated to them. The nondelegation doctrine applies to delegations by Congress-not to agencies\u27 subdelegations of legislative power to private parties. The other doctrinal lens for reviewing rulemaking by entities other than Congress--Chevron U.S.A. v. National Resources Defense Council, Inc. and its progeny-is equally blind to subdelegations of policymaking authority to parties that function beyond the boundaries of the Constitution. This Article takes up the issue of private rulemaking, and argues that its inescapable constitutional implications warrant a stronger nondelegation doctrine and a morenuanced approach to Chevron that emphasizes public accountability,legitimacy, transparency, and rational decision-making over notions of agency prerogative