108 Iowa L. Rev. 1199 (2023)
Nondelegation doctrine is enjoying a scholarly revival. Some commentators have read the U.S. Supreme Court’s 2019 decision in Gundy v. United States to portend new limitations on Congress’s ability to give away its authority to the executive branch. Other recent Supreme Court opinions have raised similar questions about delegation to private entities. Together, these cases may suggest imminent new constraints on the administrative state, generating urgent reconsideration of the purpose and application of the nondelegation doctrine.
This Article is focused on one particular line of nondelegation cases that has received less attention in the nondelegation debate: those involving private vetoes. The private-veto doctrine holds that the government cannot, consistent with the Due Process Clause, grant standardless control to private individuals or entities over the property or liberty of others. Rather than waxing and waning like other forms of nondelegation, the private-veto doctrine has retained vitality for over a century. In fact, it is woven into a variety of constitutional doctrines, and it helps to explain cases like Larkin v. Grendel’s Den and City of Cleburne v. Cleburne Living Center, which embody the principle that due process is infringed when the government enables private individuals to exercise sovereignty over others based on illicit motives.
Yet, joining the private-veto doctrine with other nondelegation doctrines has resulted in courts and scholars both misunderstanding what is unique and important about this line of cases and failing to analyze legal questions properly. This particular delegation doctrine is primarily concerned not with separation of powers, but with arbitrary uses of power, including those motivated by pecuniary bias and by personal prejudices against unpopular groups. Thus, in addition to urging a more clear-eyed reconsideration of the private-veto doctrine, this Article suggests that the doctrine may be relevant to current constitutional controversies in ways that have not previously been recognized. In particular, it may provide a stronger basis for litigation challenging statutes that empower religious individuals to deprive third parties of access to contraception and other forms of health care.