{"database": "openregs", "table": "crs_reports", "rows": [["IF13307", "The Private Nondelegation Doctrine", "2026-09-08T04:00:00Z", "2026-09-09T10:23:04Z", "Active", "Resources", "Victoria L. Killion", null, "To preserve the separation of powers inherent in the U.S. constitutional structure, the Supreme Court has recognized legal doctrines prohibiting one branch of government from giving away its powers to another branch or entity. The private nondelegation doctrine is one such principle and is potentially implicated whenever the federal government\u2014be it Congress, the President, or an agency\u2014grants federal powers or assigns governmental duties to an individual or entity outside of the government (i.e., a private actor). Essentially, the doctrine provides that the government may not confer unsupervised governmental authority on a private actor. The government may enlist the assistance of private actors only if they \u201cfunction subordinately to\u201d a federal agency that \u201chas authority and surveillance over [their] activities.\u201d \nUnsupervised delegations of governmental authority to a private entity can, in addition to raising separation-of-powers concerns, violate the Fifth Amendment\u2019s Due Process Clause. That Clause prohibits the federal government from \u201cdepriv[ing]\u201d a person of \u201clife, liberty, or property, without due process of law.\u201d The Supreme Court has said that allowing a few private businesses to choose the rules that govern their industry, for example, risks subjecting the \u201cpersonal liberty and private property\u201d of other industry members to the whims of competitors with potentially \u201cconflicting\u201d or \u201ceven antagonistic interests.\u201d  \nOrigins of the Private Nondelegation Doctrine\nTwo Supreme Court cases define the basic contours of the private nondelegation doctrine. Carter v. Carter Coal Co., a 1936 decision, involved a federal statute that set minimum wage and maximum hours requirements for coal miners based on agreements to be negotiated between the country\u2019s largest coal producers and mine workers in their districts. The Court called this arrangement \u201clegislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business.\u201d The Court held that by allowing private businesses to regulate their competitors, the law violated the due process rights of smaller coal producers. \nFour years later, in Sunshine Anthracite Coal Co. v. Adkins, the Court considered a part of the amended act that tasked a federal commission with adopting minimum coal prices and other rules for certain coal producers. The act authorized regional boards of producers to propose minimum prices and other rules to the commission, which could \u201capprove, disapprove, or modify\u201d those recommendations. The Court held that in these provisions, Congress did not improperly delegate legislative power to the coal industry because the boards \u201cfunction[ed] subordinately\u201d to the commission, which had \u201cauthority and surveillance over [their] activities.\u201d \nModern Applications of the Doctrine\nIn 2025, the Supreme Court rejected a private nondelegation challenge involving \u201cuniversal service\u201d requirements for telecommunications carriers in Federal Communications Commission (FCC) v. Consumers\u2019 Research. By statute, carriers must contribute to the FCC\u2019s \u201cmechanisms\u201d for making telecom services available to the U.S. population at \u201creasonable\u201d rates. The FCC created the Universal Service Fund (the Fund) for these purposes and has long used a private, nonprofit corporation, the Universal Service Administrative Company (USAC), to administer the Fund. USAC estimates the Fund\u2019s expenses and submits projections about carriers\u2019 revenues that the FCC uses to calculate required contribution amounts. \nThe Supreme Court upheld this arrangement in the Consumers\u2019 Research case, reasoning that USAC is \u201cbroadly subordinate to\u201d the FCC. In addition to appointing USAC\u2019s board and approving its budget, the FCC reviews and may revise USAC\u2019s projections and \u201csets the contribution factor\u201d that determines the amounts carriers must pay into the Fund. Addressing the challengers\u2019 concern that the FCC \u201csimply rubber-stamp[s]\u2019\u201d USAC\u2019s work, the Court said it is \u201csufficient in such schemes that the private party\u2019s recommendations . . . cannot go into effect without an agency\u2019s say-so, regardless of how freely given.\u201d Consumers\u2019 Research thus built on the Court\u2019s ruling in Sunshine Anthracite, explaining that a private actor can serve \u201can advisory role\u201d so long as federal officials have \u201cdecision-making authority.\u201d \nAfter issuing the Consumers\u2019 Research decision, the Court remanded several private nondelegation cases for further consideration based on that decision. The pending cases involve the Horseracing Integrity and Safety Act (HISA), a federal statute that authorizes a private corporation, the Horseracing Integrity and Safety Authority (the Authority), to propose and, along with the FTC and another private entity, enforce \u201cnationwide rules governing doping, medication control, and racetrack safety in the thoroughbred horseracing industry.\u201d \nOn remand, circuit courts have divided over whether the Authority\u2019s enforcement powers violate the private nondelegation doctrine. The Fifth Circuit found a private nondelegation defect, concluding the Authority, not the FTC, is \u201cin charge of enforcing HISA.\u201d The Authority can initiate investigations, impose fines, and sue a regulated entity in federal court to enjoin violations of rules promulgated under the act or to enforce its own sanctions. The Fifth Circuit called these authorities \u201cquintessentially executive functions.\u201d It observed that HISA does not require the Authority to seek the FTC\u2019s approval before undertaking these actions or otherwise \u201cempower the FTC to countermand any of the Authority\u2019s investigatory or charging decisions.\u201d Although the FTC can reverse an Authority sanction after an agency adjudication, the court found this \u201ctail-end\u201d review insufficient to make the Authority subordinate to the FTC. Penalties take \u201ceffect as soon as the Authority makes its decision\u201d unless an administrative law judge (ALJ) or the FTC \u201cexercises its discretion to implement a stay pending appeal.\u201d Additionally, the Fifth Circuit reasoned that with enforcement under way, a regulated party might opt to settle to avoid further exposure. \nBy comparison, the Sixth Circuit held that the Authority is sufficiently \u201csubordinate to\u201d the FTC\u2014at least in the context of a facial challenge to the act requiring the plaintiffs to prove that \u201cno set of circumstances exists under which the Act would be valid.\u201d An \u201cinternal enforcement action\u201d is a \u201cpermissible\u201d application of HISA, the Sixth Circuit decided, because the Authority \u201cmay not impose a sanction without oversight\u201d in the form of ALJ, and potentially FTC, review. The Sixth Circuit also reasoned that the FTC could also use its own rulemaking power to enhance its oversight by, among other things, \u201cconstraining the Authority\u2019s investigations and increasing the procedural rights of suspected rulebreakers\u201d or requiring the Authority \u201cto seek [the FTC\u2019s] permission before pursuing any enforcement action.\u201d \nParties from both cases have asked for the Supreme Court\u2019s review. The United States is seeking the Court\u2019s review of the Fifth Circuit\u2019s decision, arguing the appellate court \u201cmisapplied the private nondelegation doctrine, contravened this Court\u2019s precedents limiting facial challenges, and misconstrued the scope of the FTC\u2019s statutory power to oversee the Authority.\u201d The petitions are pending as of the date of this writing. \nRelated Legal Concepts\nThe private nondelegation doctrine is just one of the principles the Supreme Court has developed to preserve the Constitution\u2019s structure and requirements for exercising federal governmental powers. Related concepts, such as the public nondelegation doctrine, the distinction between governmental and private actors, and Appointments Clause case law, serve similar purposes. Courts sometimes apply these legal frameworks instead of, or in addition to, private nondelegation principles, depending on the context in which a nondelegation challenge arises and the parties\u2019 arguments in the case. When it comes to separation-of-powers arguments, these doctrines tend to be \u201ctwo sides of the same coin.\u201d\nPublic Versus Private Nondelegation. Congress alone holds the federal legislative power and may not assign or transfer it to another branch. Congress may, however, delegate to a coordinate branch some discretion in interpreting or implementing federal statutes. The public nondelegation doctrine\u2014or simply \u201cnondelegation doctrine\u201d\u2014helps to ensure that Congress does not give away its lawmaking authority while still allowing Congress to enlist another branch\u2019s assistance in \u201cfill[ing] up the details\u201d of federal law. A court applying the doctrine asks whether Congress has provided an \u201cintelligible principle\u201d to guide the agency\u2019s discretion in the delegated matter. The question is \u201cwhether Congress has made clear both the general policy\u2019 that the agency must pursue and the boundaries of [its] delegated authority.\u2019\u201d The Supreme Court has thus far applied this test flexibly, upholding \u201ceven very broad delegations,\u201d such as those authorizing an agency official to \u201cset fair and equitable\u2019 prices.\u201d \nThus, the public and private nondelegation doctrines both prohibit unconstitutional delegations of legislative authority in their respective spheres, but they \u201cdo not operate on the same axis\u201d in that they concern different delegees. \nGovernment Versus Private Actors. Given the distinct principles at play under the private and public nondelegation doctrines, a threshold question in nondelegation cases might be whether the delegee is, for constitutional purposes, a government actor or a private actor. A statutory designation that an entity is not an agency or instrumentality of the U.S. government, or that an individual is not a federal officer or employee, is not dispositive of constitutional status. For example, to determine whether a congressionally created or designated corporation is a government actor, some courts apply the test set out in the Supreme Court\u2019s 1995 decision in Lebron v. National Railroad Passenger Corp. There, the Court held that Amtrak was \u201cpart of the Government\u201d for First Amendment purposes because Congress (1) created Amtrak as a corporation by statute (2) to advance \u201cgovernmental objectives\u201d and (3) \u201cretain[ed]\u201d for the government \u201cpermanent authority to appoint a majority of [Amtrak\u2019s] directors.\u201d In 2015, the Court again held that Amtrak was a governmental entity\u2014this time for separation-of-powers purposes\u2014because the \u201cpolitical branches created Amtrak, control its Board, define its mission, specify many of its day-to-day operations, have imposed substantial transparency and accountability mechanisms, and, for all practical purposes, set and supervise its annual budget.\u201d This decision led some courts to apply a more holistic approach to evaluating an entity\u2019s governmental or private status that considers factors beyond the Lebron elements. \nA reviewing court might apply the private nondelegation doctrine if both parties agree that the delegee in question is private, or if the delegee is a nominally private entity that does not meet the Lebron elements or related factors. If, instead, a court finds that an entity is governmental in nature, the court might decide that delegations to that entity must satisfy the intelligible principle test under public nondelegation principles. \nAppointments Clause. Like the private nondelegation doctrine, the Constitution\u2019s Appointments Clause (art. II, \u00a7 2, cl. 2) limits who can exercise the federal government\u2019s powers. The Clause applies to those who \u201coccupy a continuing position established by law\u201d and \u201cexercise[] significant authority pursuant to the laws of the United States\u201d\u2014that is, \u201cOfficers of the United States.\u201d Officers must be appointed in a particular manner, the default being presidential appointment with the Senate\u2019s advice and consent, so that those who execute the law are accountable to elected officials who are accountable to the people.\nMost Appointments Clause cases involve government positions and thus do not implicate the private nondelegation doctrine. Where a litigant challenges an entity\u2019s authority on both Appointments Clause and private nondelegation grounds, a court might opt to first decide whether the entity is governmental or private for constitutional purposes (the question discussed in the previous section).", "https://www.congress.gov/crs_external_products/IF/PDF/IF13307/IF13307.1.pdf", "https://www.congress.gov/crs_external_products/IF/HTML/IF13307.html"]], "columns": ["id", "title", "publish_date", "update_date", "status", "content_type", "authors", "topics", "summary", "pdf_url", "html_url"], "primary_keys": ["id"], "primary_key_values": ["IF13307"], "units": {}, "query_ms": 0.3020460717380047, "source": "Federal Register API & Regulations.gov API", "source_url": "https://www.federalregister.gov/developers/api/v1", "license": "Public Domain (U.S. Government data)", "license_url": "https://www.regulations.gov/faq"}