If we were on Family Feud and the question was “Name a constitutional obstacle to private enforcement of federal substantive law,” the #1 answer on the board would probably be Article III standing—most notably its requirement that any plaintiff suing in federal court must have suffered a concrete, particularized “injury in fact” as a result of the alleged violation of federal law. After TransUnion v. Ramirez, however, a new answer is moving up the survey: Article II. Although most of TransUnion’s rationale was grounded in Article III, Justice Kavanaugh’s majority opinion also observed that private litigation by ostensibly “unharmed” plaintiffs “would infringe on the Executive Branch’s Article II authority.” TransUnion’s invocation of Article II has accelerated challenges to a host of federal private enforcement regimes, prompting one district court judge in Florida to declare the qui tam provisions of the False Claims Act unconstitutional.
In their excellent article, Nitisha Baronia, Jared Lucky, and Diego Zambrano interrogate this Article II challenge to private enforcement by taking us back in history. Long before Richard Dawson was hosting Family Feud. All the way back to Richard Harrison, the Auditor of the U.S. Treasury Department whose correspondence with Alexander Hamilton sheds light on Founding Era understandings of private enforcement regimes. Baronia, Lucky, and Zambrano marshal a host of historical sources to show that the new weaponization of Article II stands in stark contrast to a “tradition of private enforcement” that existed before, during, and immediately following the Founding. In an age when “history and tradition” dominate so much of the legal landscape, this is an invaluable contribution.
The authors begin by showing what is at stake, quantifying the hundreds of private enforcement regimes Congress has enacted to enforce a wide swath of federal substantive law. Under the new understanding of Article II, however, Congress may not empower unharmed private plaintiffs to enforce public rights and remedies; that power belongs exclusively to the executive branch. The authors justifiably critique the notion that there is, in fact, a “clean dichotomy between public and private rights.” But their principal focus is on history, contesting the originalist bona fides of the Article II challenge on originalism’s own terms.
Turning first to English practice, the authors argue that “most English laws—from crimes, to regulatory statutes, to private disputes—were enforced at the initiative of private litigants.” The early American colonies (and the States they became) likewise embraced private enforcement for civil and regulatory matters, though they were more skeptical of private criminal prosecutions. The authors draw especially persuasive lessons from practice in Massachusetts, which adopted its own separation of powers that was at least as strict as what the Constitution enshrines for the federal government.
The Framers of the federal government had a similar view of private enforcement. Among many interesting insights, the authors note that Alexander Hamilton, shortly after writing the Federalist Papers, drafted a tax law in New York enforceable through private qui tam actions. Hamilton provided another data point while serving as the nation’s first Treasury Secretary, when President George Washington sought his advice on whether he could pardon a customs inspector who had been indicted and fined $400 through an action by an informer suing in the name of the United States. Consulting with the aforementioned Richard Harrison, Hamilton concluded that any pardon could not exempt the inspector from the portion of the fine awarded to the private litigant. This incident and others bolster the view that the Executive Branch did not wield exclusive authority with respect to such enforcement actions. Accordingly, Baronia, Lucky, and Zambrano conclude: “The Americans who framed and ratified the Constitution saw no conflict between widespread private enforcement and the separation of powers in the federal Constitution.”
But that is not all. The authors also examine modern legal doctrines, arguing that the Supreme Court’s case law on criminal prosecutorial power, civil enforcement power, standing, state action, and nondelegation coheres with Founding Era evidence showing the constitutionality of civil and quasi-civil private enforcement. They close, however, by recognizing three discrete areas where private enforcement regimes might transgress our constitutional structure: (1) civil actions that are tantamount to a criminal prosecution; (2) civil actions to enforce the federal government’s own property interests; and (3) private enforcement regimes that “crowd out” the executive branch from playing any role in enforcing or influencing the relevant area of federal law. Beyond these narrow exceptions, the Article II challenge should be rejected; “private rights of action need not be placed under a microscope.”
The relationship between Article II and private enforcement has crucial implications for our constitutional structure, civil litigation, and the enforceability of federal substantive law. I have offered my own thoughts on this question in a forthcoming article—as have others—and the issue is very much on the front burner in the academy and the courts. As these Article II challenges percolate through the federal judiciary, the deep, sophisticated historical analysis offered by Baronia, Luck, and Zambrano is a timely, compelling must-read.
