Nitisha Baronia, Jared Lucky, and Diego A. Zambrano have published Private Enforcement at the Founding and Article II in the California Law Review:
Article II vests the executive power in the President. Yet Congress routinely empowers private plaintiffs, not just the President, to enforce public regulatory laws. Because of this, in almost every area of law—from environmental and antitrust law to civil rights and securities law—the bulk of enforcement occurs through private civil suits rather than government-initiated litigation. Scholars and originalist judges are, for the first time, seizing on this apparent contradiction to argue that this mode of “private enforcement” may be an unconstitutional delegation of executive power. In TransUnion v. Ramirez, the Supreme Court observed that a “regime where Congress could freely authorize unharmed plaintiffs to sue defendants” would “infringe on the Executive Branch’s Article II authority.” This, along with invitations by Justices Alito and Thomas, ignited a series of lower court cases and historically grounded critiques of private enforcement. In an emblematic case, Circuit Judge Kevin Newsom drew on TransUnion and other cases to argue that “Article II’s vesting of the ‘executive Power’ in the President . . . prevents Congress from empowering private plaintiffs to sue for wrongs done to society.”
This emerging “Article II Challenge” relies, at its core, on a particular reading of Founding Era history and the original meaning of the Vesting Clause. Challengers argue that the Take Care Clause’s command that the President “shall take care that the laws be faithfully executed,” combined with Founding Era history, establishes that public rights claims—those seeking civil penalties or enforcement of regulatory violations against society—must be enforced exclusively by the executive branch. If the Supreme Court embraces this argument, hundreds of statutory schemes and thousands of claims will crumble.
This Article provides a historical corrective and refutes the emerging Article II Challenge. Our original historical investigation of “penal statutes”—a category of Founding-Era regulatory legislation that anticipated modern private rights of action—uncovers the deep constitutional foundation of this tradition of private enforcement. We offer three key historical contributions. First, we demonstrate that Founding Era lawmakers passed reams of statutes empowering private plaintiffs to sue for wrongs done to society, at both the state and federal levels. Private enforcement of regulatory law was ubiquitous in England, colonial America, and the Early Republic, a broader legal history that originalist proponents of the Article II Challenge have overlooked or misunderstood. Second, we show that post-ratification contemporaries saw no conflict between executive power and private enforcement, even when these suits vindicated public rights. Third, we reveal that the Crown, governors, and presidents could not control private penal statute claims through the writ of nolle prosequi or other mechanisms. We demonstrate this by surfacing a previously neglected 1791 case in which President Washington and Secretary Hamilton concluded that the President could not control civil litigants seeking statutory penalties, even when they proceeded nominally on behalf of the United States. This historical evidence weakens both the Article II Challenge and the “unitary executive” theory because it shows that Congress was free to empower private plaintiffs to execute the law. We then supplement those historical insights with an analysis of contemporary legal doctrines governing executive control over private enforcement. We conclude that private enforcement does not violate Article II, except under extremely narrow conditions. Our proposed constitutional test would leave most private enforcement schemes untouched. Ultimately, this Article provides a comprehensive historical and doctrinal defense of private enforcement writ large.
--Dan Ernst
