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The new private-regulation skepticism: due process, non-delegation, and antitrust challenges.

2. The Carter Coal Puzzle

Whether the D.C. Circuit is correct depends in large part on how to interpret Carter Coal, which is, doctrinally speaking, a confusing case. The quote reproduced earlier is replete with references to "delegation." (238) But it also mentions arbitrariness and denial of "due process." Is it a delegation case or a due process case (or both)?

By deciding that an intelligible principle couldn't save a private delegation, (239) the D.C. Circuit chose to treat Carter Coal as a non-delegation decision. But, at the same time, the court suggested that the characterization didn't matter: it wrote, in a footnote, that "the distinction evokes scholarly interest," but the parties in this case didn't press the point, and "neither court nor scholar has suggested a change in the label would effect a change in the inquiry." (240) But this is quite wrong. Labels don't always matter, though in this case, non-delegation and due process doctrines have quite different implications.

First--as a matter of doctrine--a non-delegation holding only applies against federal delegations while a due process holding applies against the states as well. (241) Admittedly, this wouldn't change the result in the Amtrak case, which concerned a federal delegation; but making the basis clear would help litigants in future cases of state delegation. Nondelegation cases have their particular "intelligible principle" doctrine, while due process cases have their own separate doctrine involving Washington ex rel. Seattle Title Trust Co. v. Robergev (242) Mathews v. Eldredge, (243) Board of Regents v. Roth, (244) and so on. Thus, treating the doctrine of private delegations as a unitary entity rooted in both the Vesting Clause and the Due Process Clause needlessly raises questions that could be avoided if the doctrinal basis were clear. For instance, must all nondelegation cases import due process case law? Must cases involving federal delegations (where both clauses apply) proceed identically with cases involving state delegation (where only one clause applies)?

Second, plaintiffs in cases involving federal delegation would prefer to win on a due process theory rather than on a non-delegation theory. A due process victory can give rise to a damages claim under Bivens against the federal actors responsible for the violation, (245) while Bivens has never been applied to non-delegation doctrine. (246)

Third--as a matter of realpolitik--given the widespread perception that non-delegation doctrine is mostly dead (247) while due process is used constantly, a theory grounded in due process is probably more likely to be used.

Fourth--as a matter of convenience--a due process approach would have the advantage of being able to use the existing holding of Lebron that Amtrak is a state actor for constitutional rights purposes, rather than having to invent a new ad hoc test to make Amtrak private for non-delegation purposes. (248)

Finally, and most fundamentally--as a jurisprudential matter, even putting aside pragmatic concerns and assuming away all cases involving state delegation--the Due Process Clause and non-delegation doctrine serve quite different purposes. Non-delegation doctrine is structural and seeks to ensure that Congress makes the important decisions. Due process, on the other hand, is all about fairness. Fairness and structural boundaries may be related, but not in any necessary way.

Consider, for instance, Whitman v. American Trucking Ass'ns, Inc., (249) where the Supreme Court considered a non-delegation challenge to a provision of the Clean Air Act. (250) Earlier, the D.C. Circuit had agreed with the challengers that the delegation of regulatory authority to the EPA lacked an intelligible principle. (251) Nonetheless, it had given the EPA a chance to cure the overbreadth of the delegation by adopting a limiting construction. (252) The D.C. Circuit's approach had been suggested by administrative law scholar Kenneth Culp Davis, who argued that the goal of non-delegation doctrine should be to protect against "arbitrariness" and "uncontrolled discretionary power," and that administrative safeguards could fulfill this purpose as well as statutory language. (253)

No way, said the Supreme Court: If Congress has delegated too broadly, separation of powers has already been breached. (254) The EPA's trying to adopt the limiting construction would itself be a forbidden exercise of regulatory power. (255) But note that, under the Davis theory, there would be no unfairness: everyone will be on notice as to the precise conduct required or prohibited, and everyone will have had an opportunity to comment under the Administrative Procedure Act. (256) So presumably, if the limiting regulations were adopted, a due process challenge would, and should, fail.

A violation of non-delegation doctrine thus needn't violate due process. The same is true in reverse: If Congress passes a very specific statute allowing welfare benefits to be withdrawn without any process, presumably due process will be violated (257) but there will be no impermissible delegation.

Not that non-delegation doctrine and due process should never talk to each other. As noted above, the presence of procedures has sometimes been held to prevent a violation of nondelegation doctrine. (258) This is still good law after American Trucking, as long as these procedures aren't made up by the recipient of the overbroad delegation. APA procedures or the availability of statutory or constitutional judicial review really do narrow a delegation--in the case of APA procedures, Congress made some of the important decisions in 1946, and in the case of constitutional review, Congress legislated against the background of decisions that were made in, say, 1791 or 1868 and that are now out of the delegate's hands. The availability of these procedures will no doubt also be relevant to a due process inquiry. So the doctrines aren't entirely unrelated. Moreover, to the extent certain procedures are unavailable against the government (for example, the APA, which governs only agencies, (259) or Bill of Rights protections, which often don't apply against private actors (260)), non-delegation doctrine--just like due process--might end up applying differently against public and private parties even though the inquiry is the same. (261)

Nonetheless, the doctrines should still be kept distinct as an analytic matter. The procedures that save a delegation from overbreadth are the sorts that constrain a delegate's discretion, for instance by enforcing substantive rationality. One example might be "hard look" review under the APA. (262) The procedures that save a delegation from violating due process, on the other hand, are the sorts that ensure fair treatment for the affected party, for instance by minimizing bias or by ensuring that the three-part Mathews v. Eldridge balancing test (263) is met--one example might be the APA procedures for formal adjudication. (264)

Having established that the label matters, an important question is whether the Carter Coal holding (265) is best thought of as a non-delegation or due process decision. The Supreme Court's references to "delegation" aren't very probative. Merely saying the word "delegation" isn't enough to invoke non-delegation doctrine. Delegations can be unconstitutional for many reasons. This Article has discussed many cases as being about private delegations even though (as state cases) they were unambiguously about due process. (266) One can argue that Congress can't constitutionally delegate a "private attorney general" power to qui tarn plaintiffs, either on standing grounds (267) or on Appointments Clause grounds; (268) or, one can argue that delegation to religious groups violates the Establishment Clause. (269) One can thus speak of "delegations" and call them unconstitutional without implying that the case has anything to do with non-delegation doctrine as discussed in Panama Refining or Schechter Poultry. (270)

Slightly more probative is the opinion's citation of Schechter Poultry, which is indisputably a non-delegation case. (271) I say "slightly" because mere citation isn't a jurisprudential argument. That citation is immediately followed by citations to Eubank and Roberge, which are due process cases. (272) As I mentioned above in the context of Currin v. Wallace (a nondelegation case that cites Roberge, a due process case, as well as Carter Coal), (273) perhaps this "commingling" of doctrines is a sign of sloppiness, (274) or maybe it's a sign that the Supreme Court thought private delegations automatically raise due process issues while public delegations don't. Or perhaps this is reading too much into a mere citation.

One could--on the basis of the Schechter Poultry citation--call Carter Coal both a non-delegation decision and a due process decision. (275) Some venerable commentators take this route and characterize Carter Coal in both ways. In 1971, dissenting in McGautha v. California, (276) Justice Brennan characterized nondelegation doctrine as having "roots both in ... separation of powers ... and in the Due Process Clause"--here citing Carter Coal (277)--and stated that, as a due process doctrine, it applied to the states. (278) A little bit later, Justice Thurgood Marshall agreed that Carter Coal was (at least) a non-delegation case: "The last time that the Court relied on Schechter Poultry was in [Carter Coal]." (279) Paul Verkuil explicitly writes that the Carter Coal Court "held the delegation arbitrary both under Article I of the Constitution and the Due Process Clause." (280)

The non-delegation rationale wouldn't be crazy: Entrusting a decision entirely to the unreviewable and unguided discretion of private parties is the opposite of having an "intelligible principle." But then the Court wouldn't need to explicitly use the fact that the delegates were private. (281) So even if Carter Coal were labeled a non-delegation case, it wouldn't be one that supports a special doctrine for private parties (some private parties, like Amtrak, do have intelligible principles attached to their delegation (282)); nor would it add anything to a due process analysis.

On balance, Carter Coal is properly considered a due process case and not a non-delegation case, at least not one that has a distinctive take on private delegations (283)--though the text (as well as the text in Currin (284)) isn't a model of clarity. More importantly for the law, the last thirty years' worth of Supreme Court cases agrees with this conclusion. (285) In 1983, Justice White, in his dissent in INS v. Chadha, (286) characterized Schechter Poultry and Panama Refining as the only two cases where a statute was struck down on non-delegation grounds, and omitted Carter Coal entirely. (287) Justice Blackmun did the same in his majority opinion in Mistretta v. United States (288) in 1989, (289) and Justice Scalia did the same in his majority opinion in Whitman v. American Trucking Ass'ns, Inc. in 2001. (290) A former appellate judge, one Antonin Scalia, wrote in 1986 that, though Carter Coal "discussed" non-delegation doctrine, the holding of the case "appears to rest primarily upon denial of substantive due process rights." (291)

3. How the Amtrak Case Should Have Been Decided

The wording of Carter Coal (aside from the mere citation of Schechter Poultry) and the characterization of the last thirty years of Supreme Court cases establish that Carter Coal is a due process case, not a non-delegation doctrine case. What does this imply about the D.C. Circuit's Amtrak case?

The Amtrak case may have been rightly decided, but for the wrong reason. Here's how the reasoning should have proceeded. (292) As a matter of non-delegation doctrine, there's no problem. As mentioned above, the statutory command that Amtrak "be operated and managed as a for-profit corporation" is enough to provide an intelligible principle for how Amtrak should exercise its power, jointly held with the FRA, to set performance standards. (293)

The very intelligible principle that dooms the non-delegation challenge, however, also establishes bias for purposes of a due process challenge. As a threshold matter for due process protections to apply, Amtrak must be a state actor. (Unlike the D.C. Circuit, which was concerned to call Amtrak private, here we would be concerned to call Amtrak public to achieve the same result.) No problem: see Lebron. (294) Next, the bias must be substantial enough to establish a due process violation. Here, the statute requires Amtrak to maximize its profits, and Amtrak has an effective veto power over performance measures. Therefore, it plausibly can't, without a conflict of interest, regulate the rest of the railroad industry. (295)

4. Other Comminglers

The D.C. Circuit isn't the only court that has commingled nondelegation and due process concepts so as to make the precise basis of a holding unclear. In 2004, the Fourth Circuit considered a non-delegation challenge to a supposed delegation of power to the United Mine Workers of America Combined Benefit Fund made in the Coal Industry Retiree Health Benefits Act of 1992. (296) Faced with severely underfunded benefit funds in the coal industry and an exit of firms from the industry, Congress required currently active coal companies to pay into the Combined Benefit Fund, which in turn would pay promised healthcare benefits to active and retired coal miners. (297) The Pittston Company, a coal company, argued that the Act "unconstitutionally delegates governmental authority to the Combined Fund, a private entity, giving the Combined Fund 'discretionary authority to collect and spend federal taxes and the plenary authority to administer a federal entitlement.'" (298)

The Fourth Circuit summarized private non-delegation doctrine by citing J.W. Hampton, Jr., & Co. v. United States (299) and Whitman v. American Trucking Ass'ns, Inc. (300)--as well as Carter Coal. Having characterized non-delegation doctrine as stemming from the Vesting Clauses, (301) the court continued by stating that a delegation to private entities rather than to the executive branch would be a "legislative delegation in its most obnoxious form." (302) Therefore, "[a]ny delegation of regulatory authority 'to private persons whose interests may be and often are adverse to the interests of others in the same business' is disfavored." (303)

This is doctrinally incorrect insofar as it doesn't recognize that the private delegation aspect of Carter Coal is a due process issue, but the doctrinal confusion in this case was innocuous. The Pittston court determined that the Combined Benefit Fund didn't determine who paid it, how much it would get paid (or whether penalties for nonpayment could be excused), who the beneficiaries would be, or the nature or amount of the benefits. Every important decision was made by the Act itself, the Social Security Commissioner, or the Secretary of the Treasury. All the supposed powers of the Fund related to its internal governance, or were non-regulatory, ministerial, advisory, or otherwise inconsequential. Therefore, the court held--relying on Sunshine Anthracite Coal Co. v. Adkins (304)--there was no invalid delegation.

Upholding the delegation based on Sunshine Anthracite was clearly correct (assuming the court correctly characterized the Fund's powers, or lack thereof). In retrospect, the court's characterization of private delegations as being specially disfavored under non-delegation doctrine is just dictum.

State courts also often commingle. In general, state courts are more likely to analyze delegations under a due process theory; Wyoming is one example of a state that has seen the difference clearly and apparently adopted an exclusively due-process-based theory. (305) In fact, several commentators argue that the due process approach is better than the separation of powers approach, and suggest junking the latter and retaining the former. (306) Most states haven't done that, but instead rely on both theories simultaneously.

The Texas Supreme Court, whose private delegation doctrine is discussed above, (307) claims to have been careful to keep separation of powers and due process principles separate; (308) nonetheless, the potential bias of the private delegate (factor four in its test) (309) sounds like an infusion of due process. (310)

Arizona has a non-delegation doctrine based on the legislative vesting clause of the Arizona constitution; (311) but a case apparently based on that vesting clause, Emmett McLoughlin Realty, Inc. v. Pima County, (312) cites Roberge, (313) a federal due process case, as well as a previous Arizona case (314) that cites Carter Coal. The same goes for Illinois, which also has a general nondelegation doctrine based on its legislative vesting clause (315) and at least one other specific non-delegation doctrine based on a constitutional grant to the legislature of the power to grant homestead exemptions; (316) cases citing the relevant structural clauses also cite federal due process cases like Eubank, Thomas Cusack, and Carter Coal, or other cases relying on these. (317)

For states, though, the commingling seems less harmful than for the federal government. Granted, the general concern that structural violations needn't implicate fairness, while unfair delegations raise all their own issues even if they're structurally sound, still applies. (318) But the concern that non-delegation is purely federal while due process also applies to states no longer applies when a state has its own structural non-delegation doctrine based on its own constitution. (319)

How does this apply to our examples? Recall from the due process section that several of the examples--Amtrak, and possibly the Mississippi Board of Pharmacy and the Texas Boll Weevil Eradication Foundation, but not the North Carolina Board of Dental Examiners or the Texas homeowners in the water quality protection zones--were vulnerable for bias. (320) (The dental board was immune because its role was limited to enforcing statutory commands through ordinary lawsuits, while the Texas landowners were non-state actors who didn't regulate anyone.) If a state mixes non-delegation concepts with due process concepts, the result should probably be the same as under the Due Process Clause alone.


Moving from constitutional theories like non-delegation and due process to federal statutory challenges under antitrust law isn't as great a change of gears as it might seem. As mentioned in Part I, private delegation--in particular an industry "regulating itself"--raises the possibility that incumbents will regulate potential entrants or current competitors, which can be anticompetitive.

For federalism reasons, regulation by the state itself, through the legislature or judiciary, is absolutely immune from antitrust liability under the "state action" doctrine. (321) Agencies stretch the doctrine, depending on their degree of privateness. Here, too, agencies can be private for antitrust purposes even if they otherwise look public. Once state action immunity is overcome, however, the question is whether there is an actual antitrust violation. In many of the preceding examples, this will be true, or at least will be easier to prove because of structural factors like the competitive relationship between the regulator and the regulated parties.

Once an antitrust violation is established, there remains the issue of remedy. The standard remedy is treble damages. Municipalities are exempt from damages, and many agencies will be exempt as well under sovereign immunity, mainly if the state is required to pay their bills. For some of the examples, the sovereign immunity question is difficult, so the most that can be said definitively is that they might be fully liable, and that they're in any event subject to injunctive lawsuits in which they'll have to pay attorney fees.

A. State Action Immunity

A state board charged with anticompetitive behavior will always argue, as an initial matter, that its behavior is state action exempt from antitrust law under Parker v. Brown. (322) The acts of state governments themselves--that is, a state legislature (323) or a state supreme court in its regulatory role (324)--aren't covered by federal antitrust law, (325) but a state board doesn't fall within this category. At the opposite extreme, private parties get state action immunity if they satisfy the two prongs of the test from California Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc.--that is, if they (1) act according to a clearly articulated state policy and (2) are actively supervised by the state. (326)

In between these poles, we have intermediate entities like municipalities, which have to satisfy only the first Midcal prong. They don't get blanket Parker immunity because they have no sovereignty of their own; but they're also public enough to dispense with the requirement of active supervision. The second Midcal prong, as the Supreme Court explained in Town of Hallie v. City of Eau Claire, (327) serves an essentially evidentiary purpose--that the first Midcal prong is truly satisfied and the body is really acting pursuant to state policy. (328) When the entity is private, "there is a real danger that [it] is acting to further [its] own interests, rather than the governmental interests of the State"; (329) a "private price-fixing arrangement" might be concealed by "a gauzy cloak of state involvement." (330) But when a municipality is involved, the court "may presume, absent a showing to the contrary, that [it] acts in the public interest," (331) partly because of the increased public scrutiny that comes from municipal elections and mandatory disclosure laws. (332) Thus, the court doesn't need the extra evidentiary benefits that active state supervision would provide.

1. Applicability to State Agencies

As for state agencies, the Supreme Court suggested in Town of Hallie that "it is likely that active state supervision would also not be required." (333) This is dictum, but the influential Areeda-Hovenkamp antitrust treatise agrees with it: "Dispensing with any supervision requirement for municipalities implies, a fortiori, the same for the 'public' departments and agencies of the state itself." (334) The treatise adds that "[t]oday the courts uniformly agree with that conclusion," (335) which gives a nice three-part doctrine where legislatures themselves get blanket immunity, public state agencies and municipalities are subject to the first Midcal prong, and private parties are subject to both Midcal prongs. But the apparent uniformity might be misleading, as "determining whether an actor is sufficiently 'public' so as not to require supervision has often proven difficult." (336)

2. The Cursory View

Determining whether an actor is sufficiently public has proven so difficult that the circuits are split three ways on the question, though the Supreme Court may resolve this split in the 2014 Term, in which case this Subpart will become partly moot. (337) The Fifth Circuit held that Louisiana's State Board of Certified Public Accountants (CPAs), which made rules prohibiting CPAs from "engaging in incompatible professions" like selling securities, (338) was public enough to be exempt from the active supervision requirement. Even though it was "composed entirely of CPAs who compete in the profession they regulate," the "public nature of [its] actions mean[t] that there [was] little danger of a cozy arrangement to restrict competition." (339) The Board was thus "functionally similar to a municipality." (340) The analysis here was unfortunately fairly cursory. Similarly, the Tenth Circuit held, in the context of a public university (which allegedly conspired to "monopolize certain agricultural testing services" in the state (341)), that the active supervision requirement was unnecessary "[g]iven the nature of these defendants, a constitutionally created state board, its executive secretary, and a state created and funded university." (342)

The Second Circuit's analysis of why an urban development corporation was exempt from the active supervision requirement seems to have the same flavor: The development corporation at issue was presumed to be public-interested because it was "by statute a political subdivision of the state." (343) This one-factor test certainly seems incorrect in light of the Supreme Court's holding that the Virginia State Bar, though a state administrative agency, (344) was a "private partly]" (345) subject to the active supervision requirement.

3. The Intermediate View

Other circuits don't rely on formal labeling or take the publicness of a state agency for granted. The Oregon State Bar adopted a rule making itself the sole legal provider of malpractice insurance for the state's lawyers. (346) The Ninth Circuit ended up exempting it from the active supervision requirement, but only after analyzing a number of factors: not just the Bar's formal classification as "a public corporation and an instrumentality of the State of Oregon," but also how many of its members "must be nonlawyer members of the public," the requirement that its records be "open for public inspection" and its accounts "subject to periodic audits by the State Auditor," its open meeting requirements, and the fact that its members "are public officials who must comply with the Code of Ethics." (347) "These requirements leave no doubt that the Bar is a public body, akin to a municipality for the purposes of the state action exemption." (348)

The First Circuit seems to also follow a nuanced approach. Then-Judge Stephen Breyer discussed whether the Massachusetts Board of Registration in Pharmacy was acting anticompetitively in limiting pharmacist advertising, mail-order pharmacies, and "branch offices" or "pick-up stations." (349) According to Judge Breyer, whether the pharmacy board was essentially private for the purposes of the active supervision requirement would depend "upon how the Board functions in practice, and perhaps upon the role played by its members who are private pharmacists." (350) Just half a year earlier, Judge Breyer had used a similarly pragmatic approach, holding that the Massachusetts Port Authority was similar to a municipality because it possessed "such typical governmental attributes as the power of eminent domain, rulemaking authority, bonding authority, and tax exempt status." (351)

The Eleventh Circuit summarized its own (and other circuits') cases as focusing on how "public the entity looks" (352) through an analysis of "the government-like attributes of the defendant entity":
   Factors favoring political-subdivision treatment include
   open records, tax exemption, exercise of governmental functions,
   lack of possibility of private profit, and the composition
   of the entity's decisionmaking structure. The presence
   or absence of attributes such as these tells us whether the
   nexus between the State and the entity is sufficiently strong
   that there is little real danger that the entity is involved in a
   private anticompetitive arrangement. (353)

A similar multi-factor analysis--where the entity's nonprofit status also plays a role--can be found in the Seventh Circuit. (354)

4. The FTC and Areeda-Hovenkamp View

This multi-factor analysis, while more nuanced than the simple "public is public" view of the Second, Fifth, and Tenth Circuits, still is insufficient for the FTC. Rather than a "laundry list of attributes" approach, the FTC prefers to focus on one particular aspect of the challenged bodies: the extent to which they're driven by private self-interest.

In 2011, the FTC examined the case of North Carolina's Board of Dental Examiners. (355) The Board had been accused of conspiring to drive non-dentists out of the state market for teeth-whitening services. (356) The FTC's position was that the state action exemption required active supervision "in circumstances where the state agency's decisions are not sufficiently independent from the entities that the agency regulates." (357) This includes cases where the agency has a "financial interest in the restraint that [it] seeks to enforce" (358) and is "controlled by private market participants" (359) "who [stand] to benefit from the regulatory action." (360)

Using this framework, the FTC concluded that the Board must meet the active supervision requirement if it wants to benefit from state action immunity. "Because North Carolina law requires that six of the eight Board members be North Carolina licensed dentists, the Board is controlled by North Carolina licensed dentists." (361) Moreover, dentists perform teeth whitening. Therefore, "Board actions in this area could be self interested." (362)

According to the FTC, the need for active supervision is especially acute when the agency "is not accountable to the public but rather to the very industry it purports to regulate." (363) This political unaccountability concern was present here: The Board was only accountable to dentists, as "the six dentist members of the Board are elected directly by their professional colleagues, the other licensed dentists in North Carolina." (364) Because the Board couldn't show that it was actively supervised, (365) it wasn't immune from federal antitrust law. The Fourth Circuit affirmed the FTC's holding, at least to the extent of requiring active supervision when both of the FTC's factors were present--domination by and accountability to market participants. (366) (This is the decision on which the Supreme Court has granted cert. (367))

The Areeda-Hovenkamp treatise seems to take a position closer to the FTC's, not requiring the additional element of accountability to market participants:
   We would presumably classify as "private" any organization in which
   a decisive coalition (usually a majority) is made up of
   participants in the regulated market. This presumption would be
   rather weak ... where the competitive relationship between the
   decision maker ... and the plaintiff is weak and the potential for
   anticompetitive effects not particularly strong. It would be weaker
   still where the decision maker responds to the court, governor, or
   legislature directly and on an ongoing basis. But the presumption
   should become virtually conclusive where the organization's members
   making the challenged decision are in direct competition with the
   plaintiff and stand to gain from the plaintiff's discipline or
   exclusion. (368)

Or, as Einer Elhauge puts it, " [Financially interested parties cannot be trusted to restrain trade in ways that further the public interest." (369) The strict view could also be supported by capture-based theories of the state action doctrine, like that advocated by John Wiley. (370) Aaron Edlin and Rebecca Haw, surveying recent scholarship on the subject, conclude that "although the various accounts differ in other ways, they all agree that self-dealing, unaccountable decision-makers should face antitrust liability." (371)

The Areeda-Hovenkamp treatise thus takes issue with the Ninth Circuit's approach in the Oregon State Bar case, (372) agreeing with the dissent that the self-interest of the lawyers composing the Bar should make the Bar private for state action immunity purposes. (373) The treatise additionally disagrees with approaches like that of the Second Circuit, stating that "state legislative declarations that the body is a 'public' corporation" (374) or "state mandates that the organization serve the 'public interest'" should count for little. (375) Nor should an entity's nonprofit status (376) count for much: "the typical trade or professional association is itself a nonprofit organization dedicated to improving the welfare of its members. The key is not the profit or nonprofit status of the organization, but the identity of its decision-making personnel." (377)

5. Application

How might the distinction between the Fourth Circuit's approach and the FTC and Areeda-Hovenkamp approach play out? The distinction is irrelevant if a state legislature imposes restraints on its own, in which case its action is absolutely immunized under Parker v. Brown. (378) For example, the Mississippi statute requiring pharmacy benefit managers to disclose their financial statements to the state Board of Pharmacy (379) is immunized from antitrust attack because it's the act of the legislature. The Board also, however, has a delegated power to require additional information besides balance sheets and income statements, (380) so conceivably particular bits of financial information that the Board might eventually require could still be challenged. The fiduciary duty requirement for pharmacy benefit managers, had it been adopted, would have come entirely from the Board.

If there is to be a challenge, consider the applicability of state action immunity. The Mississippi Board of Pharmacy is appointed by the Governor from lists submitted by the Mississippi Pharmacy Association with input from other pharmacist organizations. (381) All members must be licensed pharmacists and have at least five years of experience practicing pharmacy in Mississippi. (382) These requirements probably make the Board "private" for purposes of state action immunity under the FTC and Areeda-Hovenkamp approach.

The Fourth Circuit's approach would, in addition, require accountability to market actors. At first sight, this seems lacking because the Governor appoints and removes the Board members. But, on the other hand, Board members can only be removed for cause and with procedural protections, (383) so the Governor can't remove a Board member for purely policy reasons. The Governor is also constrained to appoint members suggested by pharmacist associations. (384) There is thus a plausible, though not inescapable, argument that the accountability is more to market participants than to politicians. (385)

The Texas Boll Weevil Eradication Foundation should be private enough to require active supervision under either the Fourth Circuit's or FTC and Areeda-Hovenkamp standards, because it's both peopled with growers and accountable to (that is, elected by) growers. (386)

Texas landowners in water quality protection zones are private under any test, but as we will see in the next section, they don't engage in anticompetitive behavior, so the point is moot. As for Amtrak, state action immunity is irrelevant because Amtrak is federal, so the federalism concerns animating the state action doctrine (387) don't apply. (388) Hypothetically, if Amtrak were a state entity, its for-profit nature and its statutory labeling as private should satisfy even the loose approach of the Second, Fifth, and Tenth Circuits.

Whether a state agency like the Mississippi Board of Pharmacy or the Texas Boll Weevil Eradication Foundation will be able to benefit from state action immunity from federal antitrust law will thus depend on the circuit and how strictly it analyzes the agency's structure for signs of privateness. A challenger who can show that an agency is dominated by and accountable to market participants is certainly well off in the Fourth Circuit, though such characteristics may also make the difference in "laundry list" circuits like the First (where Judge Breyer had specifically referred to pharmacists (389)), Ninth, and Eleventh, especially among judges who respect the author of the Areeda-Hovenkamp treatise. As to lesser degrees of privateness, the "laundry list" circuits might still deny state action immunity, but it's always hard to predict the outcome of a broad-ranging multi-factor test. The agencies are best off in the formalist circuits that merely look at the agency's legal designation as public.

B. Actual Antitrust Violations

Denying the agency state action immunity is only a first step, which is of no help to a challenger unless the agency's actions violate the antitrust laws.

1. The Fourth Circuit's Dental Examiners Reasoning

The Fourth Circuit's recent Dental Examiners opinion (390) and the FTC decision that it upheld (391) illustrate how a board found to lack state action immunity can also be found in violation of antitrust law. The FTC determined that the Board's action--sending cease-and-desist letters to drive non-dentist teeth whiteners out of the North Carolina market--was anticompetitive, (392) and the Fourth Circuit had little trouble upholding that determination. (393)

First, using the "quick look" framework, (394) the FTC determined that the Board's conduct was "inherently suspect" because "at its core," the Board was excluding lower-cost competitors. (395) The Board offered some procompetitive justifications for its conduct: first, that teeth whitening by non-dentists carried greater health risks; second, that teeth whitening by nondentists was illegal; and third, that it acted in good faith. (396) Promoting public safety, however, isn't a recognized excuse for colluding to restrain trade (and, moreover, the alleged health risks weren't sufficiently proven); (397) neither is the illegality of the competition sought to be restrained. (398) Good faith likewise isn't a valid antitrust defense. (399)

Next, using a "rule of reason" analysis, (400) the FTC determined that the Board (obviously) had market power; (401) this power, combined with the competition-suppressing nature of the conduct, provided indirect evidence of anticompetitive effects. (402) In any event, the actual abandonment of the market by non-dentist providers as a result of the conduct provided direct evidence of anticompetitive effects. (403) These findings shifted the burden to the Board to provide procompetitive justifications, but the same analysis from the "quick look" section likewise showed that these justifications were insufficient. (404)

One final consideration concerns whether the Board, arguably a unitary entity, was capable of concerted action, which is required for a "contract, combination ..., or conspiracy[] in restraint of trade" (405) that violates Section 1. (A Section 1 violation requires "concerted," not "independent," action, (406) unlike, say, monopolization under Section 2, (407) which can be done by a single actor.)

The discussion of Board members' personal commercial interests in the context of state action immunity (408) also shows up here. The test for concerted action is functionalist, not formalist: (409) One needs to look for "'separate economic actors pursuing separate economic interests,' such that the agreement 'deprives the marketplace of independent centers of decisionmaking,' and therefore of 'diversity of entrepreneurial interests/ and thus of actual or potential competition." (410) "[C]ompetitors 'cannot simply get around' antitrust liability by acting 'through a third-party intermediary or "joint venture.'"" (411) Applying this framework, the FTC noted that the dentist Board members operated their own dental practices and were elected by practicing dentists; that they thus had a personal financial interest in limiting the teeth-whitening market; and that they therefore remained separate economic actors. (412)

2. The Other Cases

The Board's action in this case made it one of the easier cases for antitrust analysis, because it involved conduct seeking to actually exclude competitors from a market. (413) In other cases, the antitrust analysis might be more complicated.

Areeda and Hovenkamp give an example of a municipality setting "safety standards forbidding any taxicab operator from working more than ten hours per day." (414) A private arrangement to that effect would of course be illegal. A municipality would want to claim state action immunity, but suppose the immunity fails because the necessary state authorization is lacking. Presumably there would nonetheless be no antitrust liability because this might be considered "reasonable" regulation. (415)

And presumably calling this reasonable wouldn't require a court to actually do an analysis of the policy. (416) Surely it matters more that a municipality is governmental. "This conclusion is strengthened by the fact that the city is presumably (a) not a seller of taxicab services itself; and (b) not in a position to profit from any cartel limiting output of taxicab services." (417) Areeda and Hovenkamp suggest that a structural inquiry, similar to that of standard-setting organizations, is appropriate. (418) In such a context, it becomes relevant whether the antitrust plaintiffs and defendant are competitors (and, more generally, whether the defendant has a financial interest in the outcome), (419) whether they're in vertically related or collateral markets, (420) and whether they're in the same geographic market. (421)

The Mississippi Board of Pharmacy thus seems vulnerable. Once state action immunity is overcome, (422) the competitive relation between pharmacists and pharmacy benefit managers--which was already relevant to the state action inquiry under the FTC and Areeda-Hovenkamp approach (423)--can at least create a strong presumption of a substantive antitrust violation. As noted above, the requirement of financial disclosure comes from the legislature, so state action immunity is dispositive. The Board of Pharmacy, however, still has its own discretion to choose what extra information to require, and of course the proposed fiduciary duty for pharmacy benefit managers came entirely from the Board. (424) Establishing the anticompetitive effect will still take some proof--one can imagine a challenge to disclosure of financial information because knowing one's adversaries' costs helps one to compete against them and can also facilitate collusion among pharmacists. In any event, the structural considerations should make a challenge that much easier.

The same goes for Amtrak, which has a competitive relationship with other railroads, and the Texas Boll Weevil Eradication Foundation, whose growers on its board compete with other regulated growers. On the other hand, it's hard to argue that homeowners in Texas water quality protection zones are acting anticompetitively by using a neutral state law to exempt themselves from certain water quality regulations.

C. Remedies

The result could be treble damages and attorney's fees (425) for those who are found to have conspired to restrain trade. (426) In City of Lafayette v. Louisiana Power & Light Co., (427) Justice Blackmun, dissenting, noted that municipalities found in violation of antitrust laws and not shielded by state action immunity would be liable for treble damages. (428) The majority punted on the question, (429) but the "shall recover threefold the damages" language of the Clayton Act (430) is mandatory. Justice Rehnquist, dissenting a few years later, wrote that avoiding this conclusion would "take a considerable feat of judicial gymnastics." (431)

In Rehnquist's view, the need to avoid subjecting governmental entities to treble damages counseled interpreting anticompetitive local ordinances not as violating antitrust law but merely as being preempted. (432) That was a dissent, however; the law at the time was that even municipalities could violate antitrust law and be found liable. (433)

For municipalities, this is no longer the case. Congress passed the Local Government Antitrust Act in 1984 to protect local governments, their "officials] or employee[s] ... acting in an official capacity," (434) or anyone acting under a local government or official's or employee's direction. (435) Municipalities can still violate antitrust law, but now they can only be enjoined. (436)

But this statute is of no help to private actors or state agencies that fail the tests for state action immunity. (437) In Hoover v. Ronwin, (438) for instance, the majority and the dissent disagreed over whether it was an antitrust violation for the Arizona Supreme Court's Committee on Examinations and Admissions to have conspired to restrain trade by reducing the number of attorneys in the state. (439) The majority thought it wasn't a violation because the challenged action was that of the Arizona Supreme Court in its sovereign capacity. (440) The dissent thought it was a violation because the challenged action was that of the Committee, not the Arizona Supreme Court, (441) and there was no clearly articulated state policy to reduce the number of attorneys. (442) But both sides agreed that had there been a violation, the board members would be subject to treble damages. (443) Goldfarb v. Virginia State Bar (444) would be another example of this--where the board was denied state action immunity. (445)

This has apparently been the fate of the California Travel and Tourism Commission, which was alleged to have colluded with the rental car industry to fix rental car prices. (446) The Ninth Circuit found that the Commission--which was chaired by a California cabinet official and whose commissioners were one-third gubernatorial appointees and two-thirds elected by the tourism industry (447)--wasn't acting pursuant to a "clearly articulated" state policy. (448) Thus, the Ninth Circuit found, the Commission failed Midcal's first prong; the court therefore didn't need to consider whether the Commission had (or required) "active state supervision" under Midcal's second prong. (449) The case against the Commission was allowed to proceed to trial, and the parties later settled for an amount that included nearly $6 million in attorneys' fees and costs alone. (450)

Some state agencies will nonetheless be considered "arms of the state" and share the state's sovereign immunity for purposes of the Eleventh Amendment, but other agencies and boards won't. The Supreme Court has explained that the arm-of-the-state inquiry--like the Eleventh Amendment itself--is focused on protecting both the state's dignity and the state's treasury. (451) Operationalizing this two-factor test has been left to the individual federal circuits, with the predictable result that arm-of-the-state jurisprudence "is, at best, confused." (452) Whether the state is legally liable for the agency's debts is an important factor, but how important is unclear. (453) The treasury concern trumps the dignity concern in some circuits, (454) but dignity can sometimes be more important in others, (455) and the Eleventh Circuit has stated that the most important factor is how the entity is treated by state courts. (456)

For instance, in the Fourth Circuit, the relevant factors for whether an agency shares the state's sovereign immunity are (1) whether judgments against the entity will be paid by the state or whether recoveries inure to the state's benefit; (2) whether the entity exercises substantial autonomy (this involves looking at who appoints the entity's directors and funds the entity and whether the state can veto the entity's actions); (3) whether the entity is involved with state concerns as opposed to local concerns; and (4) how the entity is treated under state law. (457) The Fifth Circuit has a similar test, but with more factors: (1) whether state statutes and case law characterize the agency as an arm of the state; (2) the source of funds for the entity; (3) the entity's degree of autonomy; (4) whether the entity is concerned primarily with local concerns; (5) whether the entity has authority to sue and be sued in its own name; and (6) whether the entity has the right to hold and use property. (458)

An extra twist is that most circuits deny sovereign immunity to private entities. (459) Some of the private entities that show up in the cases are indisputably private corporations contracting with the state, (460) but for others, one could make a colorable argument that they were public. (461) Sometimes courts seem to be merely applying their multi-factor "arm of the state" tests to these entities, but at least the Ninth Circuit has an explicit doctrine against extending sovereign immunity to private parties. (462) It's thus possible that, if an entity is found to be private under some other test--for example, the antitrust state action immunity test discussed above (463)--one will be able to import that finding of privateness as at least one factor cutting against sovereign immunity.

In any event, even if the entity is covered by sovereign immunity, it will still be subject to injunctive suits. The FTC primarily proceeds by cease-and-desist orders, though it also has the power to assess civil penalties, (464) and even private plaintiffs can pursue injunctions under Ex parte Young. (465) Such suits would still require defendants to pay both their own and the prevailing plaintiff's litigation costs. (466)

Not surprisingly, given the multitude of factors and unclear tests, it's hard to say whether some of our example organizations are potentially subject (if found in violation of antitrust law) to treble damages. Amtrak is easy; it's a for-profit entity, so it should be liable. (467) The Texas water quality protection zone landowners are likewise easy; they're just private landowners. (468)

The North Carolina Board of Dental Examiners supports itself through fees (469) and seems fairly autonomous, which cuts in favor of liability, but, on the other hand, it's also treated like an agency under state law (and its employees like state employees) (470) and deals with an issue of statewide concern, which cuts in favor of immunity. Ultimately, the Board probably has sovereign immunity because North Carolina statutes envision that in case of tort judgments against occupational boards, the state will pay the excess liability over $150,000 unless the Board's insurance covers more. (471)

The Mississippi Board of Pharmacy is funded by licensing fees and penalties, (472) but the money is deposited into the state treasury "in a special fund to the credit of the board," and funds can be expended only by legislative appropriation. (473) So perhaps the state is liable for its debts, but it's hard to tell from the statute. It's also characterized as a state board by the statute (474) and is concerned with statewide problems, which again cuts in favor of immunity. (475) On the other hand, the only state role is appointment and removal of board members by the Governor, (476) which cuts in favor of liability. It's unclear from the statute whether it has the right to hold and use property. This factor is one of the prongs of the Fifth Circuit test, discussed above. (477) As for suing and being sued in its own name, there are certainly cases involving the Board both as plaintiff and defendant; (478) this again is a factor that cuts in favor of liability. (479)

The Texas Boll Weevil Eradication Foundation is a separate nonprofit corporation, (480) which cuts in favor of liability, though it's also labeled a "quasi-governmental entity," (481) which (depending on how strong the "quasi" is) might cut in favor of immunity. It's funded through fines and assessments and has power to borrow money, (482) though this doesn't tell us whether the government is on the hook for its debts. The Foundation does have some autonomy, though a State commissioner retains some authority. His approval is required to change the number of Board positions or change zone representations on the Board. (483) The Commissioner also can exempt a grower from excessive penalties, (484) and the Board can only spend money on Commissioner-approved programs. (485) The Foundation is concerned with the statewide problem of boll weevil eradication, which cuts in favor of immunity. The Foundation can sue in its own name, which cuts in favor of liability, (486) but the statute also declares the Foundation "immune from lawsuits and liability," (487) which of course can cut in favor of immunity depending on how relevant the state-law sovereign immunity treatment is to federal law. (488)

In short, I lean strongly toward sovereign immunity for the North Carolina Board of Dental Examiners but wouldn't draw any firm conclusions on the immunity of the Mississippi Board of Pharmacy or the Texas Boll Weevil Eradication Foundation. Instead, I would simply reiterate two points: that the boards would at least possibly be liable, and that injunctive suits and attorney's fees are issues regardless.

Putting the conclusions on state action immunity, substantive antitrust violations, and liability together, Amtrak should be non-immune, in violation, and hilly liable. The North Carolina Board of Dental Examiners was found non-immune in the Fourth Circuit and may be found non-immune in the intermediate circuits. It's in violation and it might be fully liable. The Mississippi Board of Pharmacy's state action immunity likewise depends on the circuit. It may be found in violation, depending on the anticompetitive effect of its activities, and it might be fully liable. The Texas Boll Weevil Eradication Foundation's state action immunity depends on the circuit. It may be found in violation, depending on the anticompetitive effect of its activities, and it might be fully liable. The Texas landowners in water quality protection zones are non-immune and fully subject to liability but are unlikely to be substantively violating the law.


These are just some of the most salient doctrines that are currently being used, often successfully, to challenge the legality of private regulatory delegations. Federal non-delegation doctrine is unlikely to be a successful avenue for challenging these delegations. State doctrines like that in Texas will probably fare much better. The Due Process Clause seems quite promising for challenging private regulators, especially if the regulators are competitors of the regulated parties and have mandatory control over coercive processes. Due process cases can also lead to money damages against the specific individuals responsible under 42 U.S.C. [section] 1983 or Bivens. (In jurisdictions that confuse non-delegation and due process, the result under their nondelegation analysis should be similar to the result under a proper due process analysis.)

Federal antitrust law likewise seems promising, especially if the regulators are competitors of the regulated parties. State action immunity is then more likely to fail, at least in the more stringent circuits, a substantive antitrust violation is more likely to succeed because of the presence of structural anticompetitive factors, and the more independent the regulators are from the state, the more likely they are to be fully liable for treble damages. Even if treble damages aren't available, injunctive relief and the litigation costs that come with antitrust suits are still an issue.

Even more interesting is the proliferation of public-private tests: the familiar "state action" test for federal constitutional law, including the Due Process Clause; the public-private test for Texas's private non-delegation doctrine; the public-private test for the D.C. Circuit's recent private non-delegation doctrine; and the various circuits' and the FTC's tests for whether state action immunity applies. One can easily dismiss the characterization of Amtrak or the North Carolina Board of Dental Examiners as "private," but one would be wrong. At the very least, one would be wrong to presume that entities with governmental powers are necessarily public or that a finding that an organization (like Amtrak) is public for some legal doctrines implies that it can't be private for other doctrines.

Regulators are, therefore, advised to be extremely careful. Those who think of themselves as public officials might find that they are sadly mistaken, all the more sadly to the extent that they find themselves having to pay out-of-pocket damages to their regulatory victims.

(1.) Harold Abramson, writing a quarter century ago, distinguished three categories of "private regulators." Harold I. Abramson, A Fifth Branch of Government: The Private Regulators and Their Constitutionality, 16 HASTINGS CONST. L.Q. 165, 169 (1989). First, there are private actors who are "formally deputized by government as private regulators" (not counting actual public officials). Id. These include, for instance, professional licensing boards, such as the Louisiana State Board of Embalmers and Funeral Directors. See, e.g., St. Joseph Abbey v. Castille, 700 F.3d 154, 158 (5th Cir. 2012) (noting that the FTC had raised concerns about state funeral boards' being "dominated by funeral directors"). At the other extreme, there are private adjudicatory and standard-setting organizations with no formal connection to government, like the Better Business Bureau or Consumers Union. Abramson, supra, at 170-71. In between, there are organizations with some formal connection with government, though one that's less definite than in the first category. These include standard-setting organizations whose standards are incorporated by reference into law, like the American National Standards Institute, or private court-ordered arbitrators. Id. at 172-74.

(2.) See, e.g., Michael J. Astrue, Health Care Reform and the Constitutional Limits on Private Accreditation as an Alternative to Direct Government Regulation, LAW & CONTEMP. PROBS., Autumn 1994, at 75, 81.

(3.) See Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Jan. 18, 2012, 2 BvR 133/10, available at rs20120118_2bvr013310.html, []; sec also Maximilian Steinbeis, Outsourcing als Mittel der Haushaltssanierung ist verfassungswidrig, Ver-FASSUNGSBLOG (Jan. 18, 2012),, [].

(4.) See Judith Resnik, Globalization(s), privatization(s), constitutionalization, and statization: Icons and experiences of sovereignty in the 21st century, 11 INT'L J. CONST. L. 162 (2013).

(5.) See HCJ 2605/05 Academic Ctr. of Law & Bus., Human Rights Div. v. Minister of Finance [2009] (Isr.) [paragraph] 18, available at 026/n39/05026050.n39.htm, []; Barak Medina, Constitutional limits to privatization: The Israeli Supreme Court decision to invalidate prison privatization, 8 INT'L J. CONST. L. 690 (2010); Resnik, supra note 4; Alexander Volokh, Privatization and the Elusive Employee-Contractor Distinction, 46 U.C. DAVIS L. REV. 133, 180-85, 198-200 (2012).

(6.) These aren't the only doctrines used today to support the accountability of private entities doing government-like tasks: another example is the narrow scope that has recently been given to government contractor immunity. Government contractor immunity was first recognized in Boyle v. United Technologies Corp., 487 U.S. 500 (1988), and extended in Koohi v. United States, 976 F.2d 1328 (9th Cir. 1992), Bentzlin v. Hughes Aircraft Co., 833 F. Supp. 1486 (C.D. Cal. 1993), and Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009). But recent cases have taken a narrower view, including McMahon v. General Dynamics Corp., 933 F. Supp. 2d 682 (D.N.J. 2013), and at least four other cases since 2005. See id. at 692-94 (collecting cases); Alexander Volokh, Are Federal Contractors Immune from Tort Suits Just Because the Government Is?, REASON.ORG, May 9, 2013, government-contractor-immunity, [].

(7.) Private prison liability--and civil rights liability generally--is a mixed bag that resists easy characterization. Although the Supreme Court did restrict qualified immunity in civil rights suits against private prisons in Richardson v. McKnight, 521 U.S. 399 (1997), it established in Filarsky v. Delia, 132 S. Ct. 1657 (2012), that qualified immunity for private parties was still available in other contexts. Moreover, in Minneci v. Pollard, 132 S. Ct. 617 (2012), it cut back on the availability of civil rights suits for money damages against federal private prisons, though this was on a theory that state tort law already provided an adequate remedy. Id. at 620. See generally Alexander Volokh, The Modest Effect of Minneci v. Pollard on Inmate Litigants, 46 AKRON L. REV. 287 (2013); Alexander Volokh, Recent Developments in the Federal Civil-Rights Liability of Federal Private Prisons, REASON.ORG, May 6, 2013,, []; Alexander Volokh, Supreme Court Clarifies Standards for Qualified Immunity in Civil Rights Cases--Or Does It?, REASON.ORG, Apr. 5, 2013,, [].

(8.) Although the organizations below are described in the present tense, in reality some of them are described as they were before cases, discussed in this Article, striking them down or altering their workings in some way.

(9.) See infra notes 227-29 and accompanying text.

(10.) See infra notes 221-23 and accompanying text.

(11.) Ass'n of Am. Railroads v. Dep't of Transp., 721 F.3d 666, 669 (D.C. Cir. 2013) (quoting Passenger Rail Investment and Improvement Act of 2008 [hereinafter PRIIA], Pub. L. No. 110-432, [section] 207(a) (codified at 49 U.S.C. [section] 24101 note)) (internal quotation marks omitted) (holding PRIIA [section] 207 to be unconstitutional).

(12.) Id. (citing 49 U.S.C. [section] 24308(f)(1)-(2)) (internal quotation marks omitted).

(13.) Id. (citing PRIIA [section] 207(d) (codified at 49 U.S.C. [section] 24101 note)).

(14.) N.C. Gen. Stat. Ann. [section] 90-22(b) (West 2013).

(15.) Id. [section] 90-29(a), (b)(2).

(16.) See text accompanying infra notes 355-67.

(17.) MISS. CODE ANN. [section] 73-21-75(1) (West 2013).

(18.) Id. [section] 73-21-83(1).

(19.) Similar bills are pending in Oregon, Hawaii, and Oklahoma. See Joanna Shepherd, The Fox Guarding the Henhouse: The Regulation of Pharmacy Benefit Managers by a Market Adversary, 9 Nw. J.L. & SOC. POL'Y 1 (2013).

(20.) Miss. Code Ann. [section] 73-21-157(3).

(21.) Id. (internal quotation marks omitted).

(22.) See Shepherd, supra note 19, at 19-21; Mari Edlin, PBMs concerned oversight involves conflict of interest, Managed Healthcare Executive, June 2013, at 30.

(23.) Tex. Boll Weevil Eradication Found, v. Lewellen, 952 S.W.2d 454, 457 (Tex. 1997) (citing Tex. Agric. Code [section][section] 74.101-.127 (1995)).

(24.) Id. (citing TEX. AGRIC. CODE [section][section] 74.105-.106).

(25.) Id. (citing TEX. AGRIC. CODE [section] 74.113, 4 TEX. ADMIN. CODE [section] 3.3(c) (1995)).

(26.) Id. at 458 (citing TEX. AGRIC. CODE [section] 74.108(a)(4)).

(27.) Id. (citing TEX. AGRIC. CODE [section][section] 74.115(a)-(b), 74.126).

(28.) Id. (quoting TEX. AGRIC. CODE [section] 74.117) (internal quotation marks omitted).

(29.) Id. (quoting TEX. AGRIC. CODE [section] 74.120(c)).

(30.) Id. (quoting TEX. AGRIC. CODE [section][section] 74.107(b), 74.116, 74.109(h)).

(31.) See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 870 (Tex. 2000) (internal quotation marks omitted).

(32.) Id.

(33.) Id. at 871 (citing TEX. WATER CODE [section] 26.179(d) (1995)).

(34.) Id. (citing TEX. WATER CODE [section] 26.179(g)).

(35.) Id. at 872 (citing TEX. WATER CODE [section] 26.179(i)).

(36.) See infra notes 225-29 and accompanying text.

(37.) N.C. Gen. Stat. Ann. [section] 90-22(b) (West 2013).

(38.) See infra notes 188-91 and accompanying text.

(39.) See, e.g., Alexander Volokh, What a Recent Labor-Relations Decision Teaches Us About the Meaning of "Public" and "Private," REASON.ORG, Mar. 21, 2013,, [].

(40.) 49 U.S.C. [section] 24301(a) (2006).

(41.) See infra notes 363-67 and accompanying text.

(42.) Tex. Boll Weevil Eradication Found, v. Lewellen, 952 S.W. 2d 545, 471 (Tex. 1997).

(43.) 226 U.S. 137 (1912).

(44.) Id. at 141-42 (internal quotation marks omitted).

(45.) Id. at 143.

(46.) Id. at 143-44.

(47.) 242 U.S. 526 (1917).

(48.) Id. at 530-31.

(49.) Id. at 531.

(50.) Id. at 530.

(51.) 278 U.S. 116(1928).

(52.) Id. at 118 (internal quotation marks omitted).

(53.) Id. at 122.

(54.) Thomas Cusack, 242 U.S. at 529.

(55.) Roberge, 278 U.S. at 122.

(56.) 298 U.S. 238 (1936).

(57.) Id. at 283-84.

(58.) 295 U.S. 495 (1935). I discuss Schechter Poultry in the section on non-delegation doctrine, see text accompanying infra note 130.

(59.) Carter Coal, 298 U.S. at 311; cf. Highland Farms Dairy, Inc. v. Agnew, 300 U.S. 608, 614 (1937) (dodging the issue).

(60.) City of Eastlake v. Forest City Enters., Inc., 426 U.S. 668, 677-78 (1976); McGautha v. California, 402 U.S. 183, 253 n.3 (1971) (Brennan, J., dissenting); New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 439 U.S. 96, 126 n.30 (1978) (Stevens, J., dissenting).

(61.) Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envt'l Protection, 130 S. Ct. 2592, 2614 (2010) (Kennedy, J., concurring in part and concurring in the judgment).

(62.) New Motor Vehicle Bd., 439 U.S. at 109.

(63.) See text accompanying infra notes 83-87.

(64.) See also Gen. Elec. Co. v. N.Y. State Dep't of Labor, 936 F.2d 1448, 1455 (2d Cir. 1991) ("Eubank and Roberge remain good law today."); Silverman v. Barry, 727 F.2d 1121, 1126 (D.C. Cir. 1984) (noting that the Supreme Court has had recent opportunity to overrule Eubank and Roberge but has chosen to distinguish them instead); cf. A. Michael Froomkin, Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution, 50 Duke L.J. 17,155 (2000) (making this point about Carter Coal); Mark Seidenfeld, Empowering Stakeholders: Limits on Collaboration as the Basis for Flexible Regulation, 41 WM. & Mary L. Rev. 411,457 n.199 (2000) (same).

(65.) 407 U.S. 67 (1972).

(66.) Id. at 69-70.

(67.) Id. at 84-90.

(68.) Id. at 80-84.

(69.) Id. at 90 (internal quotation marks omitted). This case was decided before Mathews v. Eldridge, 424 U.S. 319 (1976), which sets forth the current balancing test, under which predeprivation hearings aren't always necessary.

(70.) Fuentes, 407 U.S. at 93.

(71.) Id. at 93 n.30.

(72.) See N. Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 606-07 (1975) (finding a due process violation: The "writ of garnishment [was] issued by a court clerk without notice or opportunity for an early hearing and without participation by a judicial officer" and was based on "conclusory allegations."); Mitchell v. W.T. Grant Co., 416 U.S. 600, 605-06 (1974) (finding due process satisfied: "The writ [of sequestration] ... will not issue on the conclusory allegation of ownership or possessory rights" but only when a judge is convinced of particular facts.); Sniadach v. Family Fin. Corp. of Bay View, 395 U.S. 337, 338 (1969) (finding a due process violation: "[N]otice and an opportunity to be heard are not given before the in rem seizure of the wages.... [T]he clerk of the court issues the summons at the request of the creditor's lawyer....").

(73.) Froomkin, supra note 64, at 149 ("The coal boards' decisions went into effect directly, without review or intervention by the federal government.").

(74.) If there were some standards to protect against personal bias, the result might well have been different. See, e.g., Women's Med. Prof'l Corp. v. Baird, 438 F.3d 595, 610 (6th Cir. 2006) (finding no due process violation when a statute required abortion clinics to be licensed by hospitals, because a government official retained the ability to waive the requirement); Biener v. Calio, 361 F.3d 206, 216 (3d Cir. 2004) ("Delaware's limitation on the [primary election] filing fee amount[, set by the relevant political party itself,] is a sufficient limitation on the Party's authority to prevent the delegation from running afoul of the Due Process Clause."); Gen. Elec. Co. v. N.Y. State Dep't of Labor, 936 F.2d 1448, 1455 (2d Cir. 1991) (stating that Eubank and Roberge "stand for the proposition that a legislative body may not constitutionally delegate to private parties the power to determine the nature of rights to property in which other individuals have a property interest, without supplying standards to guide the private parties' discretion." (emphasis added)); Seidenfeld, supra note 64, at 457 n.199 ("There is some academic disagreement about the extent of an agency's discretion to deviate or reject negotiated rules necessary to avoid the process being deemed unconstitutional private law making, but the agency or courts must retain some power to ensure that negotiated rules do not contravene statutory provisions and aim to implement something other than deals struck by some, but not all, affected interest groups." (citations omitted)); cf. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 188 n.4 (2000) ("[T]he Federal Government retains the power to foreclose a citizen suit by undertaking its own action.").

(75.) 411 U.S. 564 (1973).

(76.) Id. at 568 (internal quotation marks omitted).

(77.) Id. at 569.

(78.) Id.

(79.) Id. at 569-70.

(80.) Id. at 571. Specifically, board members had to be members of the Alabama Optometric Association, which excluded from membership non-self-employed optometrists. Id.

(81.) Id. at 579; see also Wall v. Am. Optometric Ass'n, Inc., 379 F. Supp. 175, 188-90 (N.D. Ga. 1974), summarily aff'd sub nom Wall v. Hardwick, 419 U.S. 888 (1974); cf. Commonwealth Coatings Corp. v. Cont'l Cas. Co., 393 U.S. 145, 146-50 (1968) (pecuniary bias of arbitrator).

(82.) Of course, claimants may still sometimes lose for one reason or another under this line of cases. For example, merely speculative, remote, or conflicting claims of bias aren't sufficient. In Schweiker v. McClure, the Court unanimously upheld the delegation of authority to administer Part B Medicare payments, and adjudicate disputed claims, to private insurance companies like Blue Shield of California. 456 U.S. 188 (1982). The Court held that there was no basis for finding that the hearing officers were biased because their salaries, as well as the medical claims they approved, were paid by the federal government, not by the company that employed them. Id. at 196-97. While it's quite plausible that self-employed optometrists will benefit financially from disqualifying corporate-employed optometrists, the same can't be said of Blue Shield employees who deny Medicare claims. I thus disagree with the discussion of McClure in Abramson, supra note 1, at 202-03. See also N.Y. State Dairy Foods, Inc. v. Ne. Dairy Compact Comm'n, 198 F.3d 1, 14-15 (1st Cir. 1999); Chrysler Corp. v. Tex. Motor Vehicle Comm'n, 755 F.2d 1192, 1199 (5th Cir. 1985); cf. Marjorie Webster Junior Coll., Inc. v. Middle States Ass'n of Colls. & Secondary Schs., Inc., 432 F.2d 650, 658-59 (D.C. Cir. 1970) (rejecting a due process challenge to an educational accreditation organization (assuming that it could be a state actor) without even mentioning the possibility of financial bias). A private organization could also alleviate due process concerns by its own internal regulations. See N.Y. State Dairy Foods, 198 F.3d, at 15.

As another example, delegation to the state referendum process isn't really a private delegation. City of Eastlake v. Forest City Enters., Inc., 426 U.S. 668, 677-78 (1976). Referenda are part of democracy and don't fall within the rule.

(83.) 439 U.S. 96 (1978).

(84.) Id. at 98.

(85.) Id. at 108-09.

(86.) See text accompanying supra notes 43-45.

(87.) See text accompanying supra notes 56-57.

(88.) New Motor Vehicle Bd., 439 U.S. at 120 (Stevens, J., dissenting).

(89.) This is admittedly an important coercive power, but not one whose self-interested exercise raises due process concerns. In fact, filing lawsuits (unless they're "sham") is a form of petitioning the government and, as such, is protected under the Petition Clause of the First Amendment under the Noerr-Pennington doctrine. See E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961); United Mine Workers v. Pennington, 381 U.S. 657 (1965); Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508 (1972); Freeman v. Lasky, Haas & Cohler, 410 F.3d 1180 (9th Cir. 2005).

(90.) 467 U.S. 229 (1984).

(91.) Id. at 233-34.

(92.) Id. at 241; see also Kelo v. City of New London, 545 U.S. 469, 480 (2005).

(93.) Midkiff, 467 U.S. at 243 n.6; see also Br. for Appellees at 82-85, Midkiff, 467 U.S. 229, Nos. 83-141, 83-236, 83-283, 1984 WL 987633 (citing Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116 (1928), Eubank v. City of Richmond, 226 U.S. 137 (1912), and other cases).

(94.) Midkiff, 467 U.S. at 233-34.

(95.) See also Berry v. Bd. of Governors of Registered Dentists of Okla., 611 P.2d 628, 630 (Okla. 1980) (bias in a board's decision to enforce the law by suing in state court doesn't violate due process).

(96.) See Biener v. Calio, 361 F.3d 206, 215-17 (3d Cir. 2004) (entertaining under Eubank and Roberge, though ultimately rejecting, a challenge to political parties' right to charge and keep filing fees for primary elections); Gen. Elec. Co. v. N.Y. State Dep't of Labor, 936 F.2d 1448, 1455 (2d Cir. 1991) ("[T]he determination of wage and supplement rates is delegated in the first instance to private parties who are not those persons the statute is designed to protect, and ... the statute gives the state no option other than to accept the decision made by those private parties."); Silverman v. Barry, 727 F.2d 1121, 1126 (D.C. Cir. 1984) (holding that a challenge to a delegation of tenants of the power to prevent conversion of apartments to condos can survive a motion to dismiss); Beary Landscaping Inc. v. Shannon, No. 05 C 5687, 2008 WL 4951189 (N.D. 111. Nov. 18, 2008) (similar to General Electric Co. v. New York State Department of Labor); Schulz v. Milne, 849 F. Supp. 708, 712-13 (N.D. Cal. 1994) (holding that allegations that a city had unlawfully surrendered permitting power to a "neighborhood review board," a local citizens' group, adequately stated a [section] 1983 claim under Eubank and Roberge); Independence Pub. Media of Phila., Inc. v. Pa. Pub. Television Network Comm'n, 808 F. Supp. 416, 424-27 (E.D. Pa. 1992); Nissan Motor Corp. in U.S.A. v. Royal Nissan, Inc., 757 F. Supp. 736, 740-41 (E.D. La. 1991); Wall v. Am. Optometric Ass'n, Inc., 379 F. Supp. 175, 187-90 (N.D. Ga. 1974); cf. Geo-Tech Reclamation Indus., Inc. v. Hamrick, 886 F.2d 662, 666-67 (4th Cir. 1989) (suggesting that consideration of adverse public sentiment in waste facility permitting raises similar issues to those in Eubank and Roberge); Sierra Club v. Sigler, 695 F.2d 957, 962 n.3 (5th Cir. 1983) (stating, in a case where the U.S. Army Corps of Engineers apparently rubberstamped information provided by a private firm for an Environmental Impact Statement, that "an agency may not delegate its public duties to private entities, particularly private entities whose objectivity may be questioned on grounds of conflict of interest," but locating the source of this prohibition in NEPA (internal citations omitted)); Sierra Club v. Lynn, 502 F.2d 43, 59 (5th Cir. 1974) (same).

(97.) Some of these state courts may also be applying their own constitutional law. See, e.g., People ex rel. Rudman v. Rini, 356 N.E.2d 4, 7 (111. 1976) (striking down delegation to political parties of the power to fill vacancies in political offices, citing Carter Coal and Illinois cases); People ex rel. Chi. Dryer Co. v. City of Chicago, 109 N.E.2d 201, 204-06 (111. 1952) (striking down delegation to residents of the power to name streets, citing Eubank and Thomas Cusack); Am. Motors Sales Corp. v. New Motor Vehicle Bd. of Cal., 138 Cal. Rptr. 594, 596-600 (Cal. Ct. App. 1977); Bayside Timber Co. v. Bd. of Supervisors, 20 Cal. App. 3d 1, 10-15 (Cal. Ct. App. 1971) (striking down law giving private parties veto power over enforcement of environmental and public protection laws on their property, citing Carter Coal and California cases); Murtha v. Monaghan, 151 N.E.2d 83 (N.Y. 1958); David N. Wecht, Note, Breaking the Code of Deference: Judicial Review of Private Prisons, 96 YALE L.J. 815, 827 n.66 (1987) (collecting state cases); cf. Santaniello v. N.J. Dep't of Health & Senior Servs., 5 A.3d 804, 809 (N.J. Super. Ct. App. Div. 2010) (recognizing the doctrine but calling it a "principle[] of administrative law" rather than a state or federal constitutional doctrine).

(98.) See supra Part I.B.1.

(99.) See infra Part III.C.3. This would require a showing that Amtrak is a state actor, but fortunately one can simply rely on Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995).

(100.) See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

(101.) Perhaps not against Amtrak itself. See FDIC v. Meyer, 510 U.S. 471 (1994); Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001); Volokh, Modest Effect, supra note 7, at 297. As with all these examples, the employees sued under Bivens or 18 U.S.C. [section] 1983 would be able to argue qualified immunity. The question would be whether the boards are closer to the private attorney hired by the government in Filarsky v. Delia, 132 S. Ct. 1657 (2012), or the private prison firm in Richardson v. McKnight, 521 U.S. 399 (1997). I would lean toward Filarsky (and thus the presence of qualified immunity), but this is an unresolved issue. See Volokh, Supreme Court, supra note 7. But even if this argument succeeded, that wouldn't help against clear violations of due process or against injunctive challenges. See also Barbara Kritchevsky, Civil Rights Liability of Private Entities, 26 CARDOZO L. REV. 35 (2004) (discussing qualified immunity, vicarious liability, and punitive damages issues in [section] 1983 suits).

(102.) N.C. Gen. Stat. Ann. [section] 90-29(b)(2) (West 2013).

(103.) See supra Part I.B.2.

(104.) N.C. Gen. Stat. Ann. [section][section] 90-27, 90-41.1.

(105.) MISS. Code Ann. [section] 73-21-157(3)(b) (West 2013).

(106.) See Shepherd, supra note 19.

(107.) Or there may be pre-enforcement review of the biased rule, regardless of the forum in which the rule will ultimately be enforced.

(108.) As to general allegations of bias (not necessarily pecuniary), compare Federal Trade Commission v. Cement Inst., 333 U.S. 683, 701 (1948) (a rulemaker is impermissibly biased if his mind is "irrevocably closed"), with Cinderella Career & Finishing Schools, Inc. v. Federal Trade Commission, 425 F.2d 583, 589-92 (D.C. Cir. 1970) (an adjudicator is impermissibly biased if he has prejudged the law or facts). For pecuniary bias, see Friedman v. Rogers, 440 U.S. 1, 18-19 (1979) ("Finding [in previous cases involving adjudicatory hearings] the presence of ... prejudicial [pecuniary] interests [in regulatory board members], it was appropriate for the courts to enjoin further proceedings against the plaintiffs. In contrast, [the current challenger's] challenge to the fairness of the Board does not arise from any disciplinary proceeding against him."), N.Y. State Dairy Foods, Inc. v. Northeast Dairy Compact Comm'n, 198 F.3d 1, 13-14 (1st Cir. 1999), Alliance of Auto. Mfrs. v. Gwadosky, 353 F. Supp. 2d 97, 108-09 (D. Me. 2005) (distinguishing between facial and as-applied challenges to boards), Wall v. Am. Optometric Ass'n, 379 F. Supp. 175, 190-91 (N.D. Ga. 1974) (invalidating board adjudication because of biased board membership, but upholding validity of rules without even mentioning biased board membership). But see Wecht, supra note 97, at 825 n.58 (arguing that this distinction is "murky").

(109.) Challengers should have no trouble showing that all three of these boards are state actors since, as regulators, they fulfill traditionally exclusive governmental functions. See, e.g., Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974).

(110.) Non-state actors are not subject to Bill of Rights protections like the Due Process Clause. See, e.g., Brentwood Acad. v. Term. Secondary Sch. Athletic. Ass'n, 531 U.S. 288, 295 (2001); Rendell-Baker v. Kohn, 457 U.S. 830, 840-41 (1982).

(111.) See Bd. of Regents of State Colls, v. Roth, 408 U.S. 564, 572 (1972).

(112.) See Volokh, supra note 5, at 153-56.

(113.) Cf. Galaxy Fireworks, Inc. v. City of Orlando, 842 So. 2d 160, 166-67 (Fla. Dist. Ct. App. 2003) (noting that it would be unconstitutional (though the precise constitutional provision is left ambiguous) for a state statute to incorporate federal laws or private code provisions as they may exist in the future, without distinguishing between the public and private sources incorporated).

(114.) 273 U.S. 510 (1927).

(115.) Id. at 514-20.

(116.) 409 U.S. 57 (1972).

(117.) Id. at 57-60.

(118.) 475 U.S. 813 (1986).

(119.) Id. at 821-25.

(120.) See Withrow v. Larkin, 421 U.S. 35, 47 & n.14 (1975) (identifying "pecuniary interest" cases as one type where "the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable," and citing Gibson v. Berryhill, Ward v. Village of Monroeville, and Tumey v. Ohio--both private-adjudicator and public-adjudicator cases).

(121.) See, e.g., Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936) ("[I]t 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."); Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 122 (1928) ("They are not bound by any official duty, but are free to withhold consent for selfish reasons or arbitrarily and may subject the trustee to their will or caprice."); see also text accompanying infra notes 233-235.

(122.) See Wecht, supra note 97, at 825-26 & n.59.

(123.) See, e.g., Esso Standard Oil Co. v. Cotto, 389 F.3d 212, 218-19 (1st Cir. 2004); United Church of the Med. Ctr. v. Med. Ctr. Comm'n, 689 F.2d 693, 698-700 (7th Cir. 1982).

(124.) See text accompanying infra notes 130-132.

(125.) U.S. CONST, art. I, [section] 1.

(126.) See Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 472 (2001); Field v. Clark, 143 U.S. 649, 692 (1892).

(127.) See Am. Trucking, 531 U.S. at 487-90 (Stevens, ]., concurring in part and concurring in the judgment).

(128.) See, e.g., Joseph William Singer, Property Law: Rules, Policies, and PRACTICES 590 (2d ed. 1997) (quoting the traditional Rule Against Perpetuities: "No interest is good unless it must vest, if at all, no later than 21 years after the death of some life in being at the creation of the interest").

(129.) See, e.g., In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999).

(130.) See Panama Refining v. Ryan, 293 U.S. 388, 430 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 542 (1935).

(131.) Nat'l Cable Television Ass'n, Inc. v. United States, 415 U.S. 336, 341-42 (1974); Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 646 (1980) (plurality opinion); cf. Arizona v. California, 373 U.S. 546, 626-27 (1963) (Harlan, J., dissenting in part) (using constitutional doubts raised by a broad delegation to "buttress the conviction, already firmly grounded in [a statute] and its history," that an agency lacked certain power under the statute).

(132.) Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 315-16 (2000).

(133.) J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928).

(134.) See Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 COLUM. L. REV. 2097, 2167-68 (2004); Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. CHI. L. REV. 1721, 1731, 1757 (2002). But see Merrill, supra, at 2168 (suggesting that private delegations might run afoul of deep structural considerations--there are only three branches, and delegation to someone outside of the three branches is invalid--or some other provision like "the Appointments Clause, Article III's guarantee of judicial independence, or the Due Process Clause" (footnotes omitted)). Thus, for instance, one can object to the delegation to citizens of the power to enforce federal statutes on Article II grounds; this is one of the dormant themes of Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), though the point wasn't squarely presented there, see id. at 209 (Scalia, J., dissenting). As Justice Kennedy wrote:
   Difficult and fundamental questions are raised when we ask whether
   exactions of public fines by private litigants, and the delegation
   of Executive power which might be inferable from the authorization,
   are permissible in view of the responsibilities committed to the
   Executive by Article II of the Constitution of the United States.

Id. at 197 (Kennedy, J., concurring).

(135.) Schechter Poultry, 295 U.S. at 537.

(136.) See Note, The Vagaries of Vagueness: Rethinking the CFAA as a Problem of Private Nondelegation, 127 HARV. L. REV. 751, 763 (2013) ("[T]his passage relating to the industrial actors might best be read as unnecessary dicta.").

(137.) I thus disagree with David Wecht, Michael Froomkin, and David Horton, who argue that this was a holding of Schechter regarding delegation to private organizations. See Wecht, supra note 97, at 824; Froomkin, supra note 64, at 148; David Horton, Arbitration as Delegation, 86 N.Y.U. L. REV. 437, 475 (2011). The delegation was to the President, and analyzed as such, so any statement about delegation to private groups was dictum.

(138.) See, e.g., Fahey v. Mallonee, 332 U.S. 245, 253 (1947); Yakus v. United States, 321 U.S. 414, 426 (1944) (noting adequate opportunity for judicial review); Schechter Poultry, 295 U.S. at 539-40 (distinguishing delegation to the ICC, which acts on "notice and hearing," and the Federal Radio Commission, which enforces congressional standards "upon hearing, and evidence, by an administrative body acting under statutory restrictions adapted to the particular activity"); see also Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 686 (1980) (Rehnquist, J., concurring) (one goal of non-delegation doctrine is to ensure adequate judicial review).

(139.) See Abramson, supra note 1, at 180-87 (discussing difference in accountability mechanisms for public and private actors); see also, e.g., text accompanying infra note 191.

(140.) See also text accompanying infra notes 259-61.

(141.) 306 U.S. 1 (1939).

(142.) Id. at 5.

(143.) Id. at 6 (quoting Act) (internal quotation marks omitted).

(144.) Id.

(145.) Id.

(146.) Id. at 15.

(147.) Id. at 15-16.

(148.) Id. at 16.

(149.) See supra Part II.A.1.

(150.) See text accompanying infra notes 241-64.

(151.) Or perhaps the Court was hinting that private delegations become due process issues (and thus problematic even if states do it), while public delegations are just a matter of the division of power within the government (and therefore only a matter of constitutional concern if the federal government does it). This is all very tantalizing, but this, too, is dictum.

(152.) Currin, 306 U.S. at 16.

(153.) 276 U.S. 394 (1928).

(154.) Id. at 407. This section was cited in Currin, 306 U.S. at 16.

(155.) 293 U.S. 388 (1935).

(156.) Id. at 406.

(157.) Id. at 416-19.

(158.) Id. at 430.

(159.) Currin, 306 U.S. at 16 (quoting J.W. Hampton, 276 U.S. at 407) (internal quotation marks omitted). The Supreme Court relied on Currin under similar circumstances in United States v. Rock Royal Co-Operative, Inc., 307 U.S. 533, 577-78 (1939). See also United States v. Frame, 885 F.2d 1119, 1127-28 (3d Cir. 1989) (upholding similar industry referendum provision based on Currin). The Court also upheld a regulatory scheme for the coal industry in Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940), where Congress delegated power to a government commission but made private industry into advisors to the commission. Justice Douglas wrote: "Nor has Congress delegated its legislative authority to the industry. The [private industry] members of the code function subordinately to the [government] Commission. It, not the code authorities, determines the prices. And it has authority and surveillance over the activities of these authorities. Since lawmaking is not entrusted to the industry, this statutory scheme is unquestionably valid." Id. at 399. See also Frame, 885 F.2d at 1128 (upholding delegation to beef industry of power to collect assessements and plan spending of funds, because of considerable government involvement and lack of actual lawmaking power in hands of beef industry); Cospito v. Heckler, 742 F.2d 72, 86-89 (3d Cir. 1984) (no invalid delegation to Joint Commission on Accreditation of Hospitals because Secretary of Health, Education and Welfare retained ultimate authority on accreditation); Todd & Co., Inc. v. SEC, 557 F.2d 1008, 1012-13 (3d Cir. 1977) (self-regulation of over-the-counter securities dealers by the National Association of Securities Dealers was not an unconstitutional delegation because "the Association's rules and its disciplinary actions [are] subject to full review by the SEC"); R.H. Johnson & Co. v. S.E.C., 198 F.2d 690, 695 (2d Cir. 1952) (similar).

(160.) See Frame, 885 F.2d at 1128 (upholding delegation to beef industry based on the presence of sufficient standards, without referring to any special test for private delegates); Crain v. First Nat'l Bank of Or., Portland, 324 F.2d 532, 537 (9th Cir. 1963) (under Article I, Section 1, "Congress cannot delegate to private corporations or anyone else the power to enact laws" (emphasis added)); Metro Med. Supply, Inc. v. Shalala, 959 F. Supp. 799, 801 (M.D. Term. 1996) ("Plaintiffs aver that the pedigree provisions constitute an unconstitutional delegation of legislative authority, under Article I, Section 1, of the Constitution, to the FDA and, in turn, to private drug manufacturers."); Abramson, supra note 1, at 193 (asserting that, in Currin and Rock Royal, the Supreme Court examined private delegation "under the same test that it applied to public delegations"); id. at 198 (arguing that, in Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568 (1985), involving "an Article III challenge to a private adjudication, ... the majority did not analyze the implications of [the] crucial fact [that the adjudicators were private]; instead it concluded summarily that delegation did not 'diminish the likelihood of impartial decisionmaking'"); cf. Luxton v. N. River Bridge Co., 153 U.S. 525, 529-30 (1894) (implying that Congress can not only exercise the power of eminent domain, but also create a corporation to exercise eminent domain if this is necessary and proper to exercise Congress's powers).

(161.) The most recent case is Ass'n of American Railroads v. Department of Transportation, 721 F.3d 666 (D.C. Cir. 2013), discussed infra Part III.C.1, which does quite a bit more than hint. Pittston Co. v. United States, 368 F.3d 385 (4th Cir. 2004), is also discussed below, see text accompanying infra notes 296-303. See also Cospito v. Heckler, 742 F.2d 72, 87 n.25 (3d Cir. 1984) (in dictum, citing Schechter and Roberge as cases possibly establishing a higher bar for private delegations under nondelegation doctrine); Nat'l Ass'n of Regulatory Util. Comm'rs v. FCC, 737 F.2d 1095,1143 (D.C. Cir. 1984) ("[A non-delegation] argument is typically presented in the context of a transfer of legislative authority from the Congress to agencies, but the difficulties sparked by such allocations are even more prevalent in the context of agency delegations to private individuals. [But w]e need not examine the problem because we divine no such abdication of the Commission's role as disinterested arbiter to any interested party."); United States v. Mazurie, 487 F.2d 14, 19 (10th Cir. 1973) ("Congress cannot delegate its authority to a private, voluntary organization, which is obviously not a governmental agency, to regulate a business on privately owned lands, no matter where located."), rev'd, 419 U.S. 544, 557 (1975) (holding that the Indian tribe to which authority was delegated wasn't private but rather a "unique aggregation!] possessing attributes of sovereignty").

(162.) See supra Part I.B.

(163.) Assume away any problems of Congressional powers, such as Commerce Clause problems.

(164.) See 49 U.S.C. [section] 24301(a) (2006).

(165.) Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 474-75 (2001).

(166.) N.C. Gen. Stat. Ann. [section] 90-22(a) (West 2013).

(167.) See, e.g., NBC v. United States, 319 U.S. 190, 225-26 (1943); N.Y. Cent. Sec. Corp. v. United States, 287 U.S. 12, 24-25 (1932).

(168.) Tex. Boll Weevil Eradication Found, v. Lewellen, 952 S.W.2d 454, 496 (Tex. 1997) (Cornyn, J., concurring in part and dissenting in part) (quoting Tex. Agric. Code [section] 74.101(c) (1995)).

(169.) FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 887 (Tex. 2000).

(170.) See text accompanying supra note 34.

(171.) See Miss. Code Ann. [section] 73-21-157 (West 2013).

(172.) See text accompanying supra notes 125-27.

(173.) Abbott v. State, 63 So. 667, 669 (Miss. 1913).

(174.) State ex rel. Patterson v. Land, 95 So. 2d 764, 777 (Miss. 1957); see also City of Belmont v. Miss. State Tax Comm'n, 860 So. 2d 289 (Miss. 2003); State v. Allstate Ins. Co., 97 So. 2d 372, 375 (Miss. 1957).

(175.) See Tex. Boll Weevil Eradication Found, v. Lewellen, 952 S.W.2d 454, 468 (Tex. 1997) (citing Kenneth Culp Davis, Administrative Law Treatise [section] 3.14, at 204 (2d ed. 1978)); Peter L. Strauss et al., Gellhorn and Byse's Administrative Law: Cases and Comments 617-19 (11th ed. 2011) (citing Boreali V. Axelrod, 517 N.E.2d 1350 (1987)); Hans A. Linde Et Al., Legislative And Administrative Processes 477-78 (2d ed. 1981)). The state cases are often criticized for being not very well reasoned or not forming a coherent whole. See, e.g., Davis, supra, [section] 3.12, at 196 ("[I]dentifiable principles do not emerge.").

(176.) Gary J. Greco, Note, Standards or Safeguards: A Survey of the Delegation Doctrine in the States, 8 Admin. L.J. 567, 580-88 (1994).

(177.) See Askew v. Cross Key Waterways, 372 So. 2d 913, 924 (Fla. 1978).

(178.) See In re Initiative Petition No. 366, 46 P.3d 123 (Okla. 2002); Democratic Party of Okla. v. Estep, 652 P.2d 271 (Okla. 1982); Oliver v. Okla. Alcoholic Beverage Control Bd.( 359 P.2d 183 (Okla. 1961).

(179.) See also City of Covington v. Covington Lodge No. 1, 622 S.W.2d 221, 222-23 (Ky. 1981) (adopting powers-based approach to forbid a municipality from delegating "legislative or discretionary," but not "administrative," powers).

(180.) See infra Part III.C.4; see also Grp. Health Ins. of N.J. v. Howell, 193 A.2d 103, 108-09 (N.J. 1963) (striking down a requirement that the nomination of trustees of medical service corporations be approved by "a recognized medical society or professional medical organization" under both a separation of powers analysis and a due process analysis). Several states have moved from a separation of powers view to a "procedural safeguards" view, which sounds more in due process. Colorado, for instance, followed a separation of powers-based view, see Olinger v. People, 344 P.2d 689, 691-92 (Colo. 1959) (en banc), but later adopted the procedural safeguards view, see People v. Lowrie, 761 P.2d 778, 782 (Colo. 1988) (en banc). The same evolution can also be seen in New York. Compare Fink v. Cole, 97 N.E.2d 873, 876 (N.Y. 1951) (citing N.Y. Const, art. III, [section] 1) (referring to the need for "guides and proper standards"), with Boreali, 517 N.E.2d at 1353-54 (stating that "[t]he modern view" insists on "'reasonable safeguards and standards'"). And likewise in Maryland. Compare Md. Cooperative. Milk Producers v. Miller, 182 A. 432, 435 (Md. 1936), with Dep't of Transp. v. Armacost, 532 A.2d 1056,1060 (Md. 1987).

(181.) Gamel v. Veterans Memorial Auditorium Comm'n, 272 N.W.2d 472, 475 (Iowa 1978) (citing Iowa Const, art. III, [section] 1); id. at 476 (striking down a delegation to a veterans' group of the power to spend public funds; also citing similar cases from other jurisdictions); see also Vietnam Veterans Against the War v. Veterans Memorial Auditorium Comm'n, 211 N.W.2d 333, 338-39 (Iowa 1973) (McCormick, J., dissenting).

(182.) Remington Arms Co. v. G.E.M. of St. Louis, Inc., 102 N.W.2d 528, 534-35 (Minn. 1960); West St. Paul Fed. of Teachers v. Indep. Sch. Dist. No. 197, West St. Paul, 713 N.W.2d 366, 376-77 (Minn. App. 2006) (recognizing Remington Arms as good law but distinguishing it). A recent challenge to Minnesota's occupational licensing of horse teeth floaters relied in part on a private delegation theory. See Challenging Barriers to Economic Opportunity, Institute For Justice,, []. But this challenge failed in a district court in 2008. See Minnesota District Court Upholds Economic Protectionism, Institute For Justice (June 23, 2008),, [].

(183.) Hetherington v. McHale, 329 A.2d 250, 253-54 (Pa. 1974) (striking down delegation to private organizations of the power to select eight out of seventeen members of a board responsible for spending public funds); Commonwealth ex rel. Kane v. McKechnie, 358 A.2d 419, 420-21 (Pa. 1976); Independence Pub. Media of Phila., Inc. v. Pa. Pub. Television Network Comm'n, 808 F. Supp. 416, 422-24 (E.D. Pa. 1992).

(184.) Toussaint v. State Bd. of Med. Exam'rs, 329 S.E.2d 433 (S.C. 1985); Gold v. S.C. Bd. of Chiropractic Exam'rs, 245 S.E.2d 117, 119-20 (S.C. 1978); Gould v. Barton, 181 S.E.2d 662, 674 (S.C. 1971); Ashmore v. Greater Greenville Sewer Dist., 44 S.E.2d 88, 95 (S.C. 1947).

(185.) Some Utah cases have struck down private delegations, but the constitutional basis for these holdings has been quite ambiguous. See, e.g., Salt Lake City v. Int'l Ass'n of Firefighters, 563 P.2d 786, 789 (Utah 1977); Union Trust Co. v. Simmons, 211 P.2d 190, 191-93 (Utah 1949); Revne v. Trade Comm'n, 192 P.2d 563, 565-68 (Utah 1948).

(186.) Tex. Boll Weevil Eradication Found, v. Lewellen, 952 S.W.2d 454, 465 (Tex. 1997) (citing Tex. Const, art. II, [section] 1; id. art. III, [section] 1). For previous cases applying a non-delegation doctrine against the judiciary and a state administrative agency, see id. at 468-69 (citing cases).

(187.) See supra Part I.B.4.

(188.) Tex. Boll Weevil, 952 S.W.2d at 470.

(189.) Id. (citing Tex. Agric. Code [section][section] 74.109(d), 74.109(f), 74.110, 74.120(c), 74.127; Tex. Gov't Code [section] 551.001(3) (1995) (internal citations omitted)).

(190.) Id. (citing Tex. Agric. Code [section] 74.109(d)).

(191.) Id. (citing Tex. Agric. Code [section] 74.109(e), 4 Tex. Admin. Code [section] 3.57) (internal citations omitted).

(192.) Id. at 471. But see id. at 494 (Comyn, }., concurring in part and dissenting in part) ("The Court also fails to adequately explain why this largely fictional distinction [between public and private agencies], which leads it to propose an 'either/or' choice, is so important that this entire statute should turn on it."); see also text accompanying infra note 248 (noting potential disadvantages of developing new public-private tests).

(193.) Tex. Boll Weevil, 952 S.W.2d at 472 (majority opinion).

(194.) Id. at 473-75.

(195.) Id. at 475. Justice Hecht believed the unconstitutionality of the delegation was even clearer than the majority had thought; in his view, the Foundation was "little more than a posse: volunteers and private entities neither elected nor appointed, privately organized and supported by the majority of some small group, backed by law but without guidelines or supervision, wielding great power over people's lives and property but answering virtually to no one." Id. at 479 (Hecht, J., concurring in part and concurring in the judgment). Justice Hecht's opinion analyzed the delegation using due process cases like Carter v. Carter Coal Co., 298 U.S. 238 (1936), Eubank v. City of Richmond, 226 U.S. 137 (1912), and Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116 (1928). See Tex. Boll Weevil, 952 S.W.2d at 487-89 (Hecht, J., concurring in part and concurring in the judgment). The majority opinion avoided using such cases. See text accompanying infra note 304. These due process cases are discussed above, see supra Part II.A.1. For a discussion of why non-delegation ideas and due process ideas should be kept separate, see infra Part III.C.

(196.) Tex. Boll Weevil, 952 S.W.2d at 492 (Cornyn, J., concurring in part and dissenting in part).

(197.) Id. at 493.

(198.) Id.

(199.) Id. at 493-94.

(200.) Justice Abbott recapitulated the concerns of the Texas Boll Weevil dissent the next time the Texas Supreme Court used the doctrine to strike down a private delegation. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 899 (Tex. 2000) (Abbott, J., dissenting).

(201.) See Proctor v. Andrews, 972 S.W.2d 729, 734-38 (Tex. 1998).

(202.) See City of Houston v. Clark, 197 S.W.3d 314, 320 (Tex. 2006); see also City of Pasadena v. Smith, 292 S.W.3d 14 (Tex. 2009). For the analogous use of the federal non-delegation doctrine as an avoidance canon, see text accompanying supra notes 131-32.

(203.) See supra Part I.B.5.

(204.) FM Props., 22 S.W.3d at 879.

(205.) Id. at 875-77.

(206.) Id. at 880-88; see also Froomkin, supra note 64, at 158 (suggesting that, according to FM Properties, factors (1) and (4) are most important).

(207.) See text accompanying supra notes 160-61.

(208.) See, e.g., FM Props., 22 S.W.3d at 887-88 (fairly searching review of standards).

(209.) 721 F.3d 666 (D.C. Cir. 2013).

(210.) Id. at 668. For the facts surrounding the Amtrak case, see supra Part I.B.1. This case is already being relied on to challenge other delegations of regulatory authority to private parties. See, e.g., Appellants' Brief, Contender Farms, L.L.P. v. U.S. Dep't of Agric., No. 13-11052, 2013 WL 6823424 (5th Cir. Dec. 18, 2013) (challenging rule delegating USDA's enforcement authority under Horse Protection Act to private parties).

(211.) Ass'n of Am. Railroads, 721 F.3d at 671.

(212.) Id. at 671 n.3 (citing Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936)).

(213.) See text accompanying supra notes 141-51.

(214.) See supra note 159; Ass'n of Am. Railroads, 721 F.3d at 671.

(215.) Ass'n of Am. Railroads, 721 F.3d at 671.

(216.) See text accompanying supra notes 188-95 (explaining the Texas Supreme Court's test establishing that the Boll Weevil Eradication Foundation was private).

(217.) 513 U.S. 374, 400 (1995).

(218.) Id.

(219.) Ass'n of Am. Railroads, 721 F.3d at 676-77.

(220.) Id.

(221.) Id. at 674.

(222.) Id.

(223.) Id.

(224.) See Rendell-Baker v. Kohn, 457 U.S. 830, 840-41 (1982); Blum v. Yaretsky, 457 U.S. 991, 1010-11 (1982).

(225.) Ass'n of Am. Railroads, 721 F.3d at 675 (quoting 49 U.S.C. [section] 24301(a)) (internal quotation marks omitted).

(226.) Id. (quoting 49 U.S.C. [section] 24301(a)) (internal quotation marks omitted).

(227.) Id. at 676 (quoting 49 U.S.C. [section] 24101(d)) (internal quotation marks omitted).

(228.) Id. at 675 (quoting Nat'l R.R. Passenger Corp., Freedom Of Information Act Handbook 1 (2008)) (internal quotation marks omitted).

(229.) Id.

(230.) Id.

(231.) Id.

(232.) See Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J.L. Econ. & Org. 81, 85-91 (1985).

(233.) Ass'n of Am. Railroads, 721 F.3d at 675 (quoting Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936)) (internal quotation marks omitted).

(234.) Id. (quoting Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 118, 122 (1928)) (internal quotation marks omitted).

(235.) Cf. Volokh, supra note 5, at 172-87.

(236.) Ass'n of Am. Railroads, 721 F.3d at 676.

(237.) This case is also discussed in Alexander Volokh, A New Private Delegation Doctrine?, (Aug. 1, 2013),, [].

(238.) See text accompanying supra note 58.

(239.) See text accompanying supra note 206.

(240.) Ass'n of Am. Railroads, 721 F.3d at 671 n.3.

(241.) See Wecht, supra note 97, at 825 n.57; The Vagaries of Vagueness, supra note 136, at 764; text accompanying supra note 172.

(242.) 287 U.S. 116 (1928).

(243.) 424 U.S. 319 (1976).

(244.) 408 U.S. 564 (1972).

(245.) See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

(246.) On Bivens, see Volokh, Modest Effect, supra note 7.

(247.) See Fed. Power Comm'n v. New England Power Co., 415 U.S. 345, 352-53 (1974) (Marshall, }., dissenting); John Hart Ely, Democracy And Distrust: A Theory Of Judicial Review 131-33 (1980); David Schoenbrod, Power Without Responsibility: How Congress Abuses The People Through Delegation 58-81 (1993); Sunstein, supra note 132, at 315.

(248.) Cf. Tex. Boll Weevil Eradication Found, v. Lewellen, 952 S.W.2d 454, 494 (Tex. 1997) (Comyn, J., concurring in part and dissenting in part) (criticizing majority's newly minted public-private analysis).

(249.) 531 U.S. 457 (2001).

(250.) Id.

(251.) Id. at 463 (citing Am. Trucking Ass'ns, Inc. v. EPA, 175 F.3d 1027, 1034 (D.C. Cir. 1999)).

(252.) Id. (citing Am. Trucking, 175 F.3d at 1038).

(253.) Kenneth Culp Davis, A New Approach to Delegation, 36 U. Chi. L. Rev. 713, 713 (1969). The D.C. Circuit, by the time of American Trucking, had already used this approach in Amalgamated Meat Cutters & Butcher Workmen AFL-CIO v. Connally, 337 F. Supp. 737, 758-59 (D.D.C. 1971) (three-judge panel).

(254.) Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 472-73 (2001).

(255.) Id. at 473.

(256.) See 5 U.S.C. [section] 553(b)-(c) (2012).

(257.) See Goldberg v. Kelly, 397 U.S. 254 (1970).

(258.) See supra notes 138-39 and accompanying text.

(259.) See 5 U.S.C. [section] 551(1) (defining "agency"); id. [section] 551(4)-(7) (limiting the definitions of "rule," "rule making," "order," and "adjudication" to agencies).

(260.) Bill of Rights protections apply only against "state actors," a category that often (though not always) excludes private parties. See sources cited supra note 110.

(261.) See text accompanying supra notes 139, 160-61.

(262.) See 5 U.S.C. [section] 706(2)(A); Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971).

(263.) 424 U.S. 319, 335 (1976) (holding that analysis of whether procedure conforms to due process is done by balancing affected party's interest, government's interest, and importance of procedure for accuracy).

(264.) See 5 U.S.C. [section][section] 554, 556-57.

(265.) See text accompanying supra notes 56-59.

(266.) See supra Part II. A.

(267.) See Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771-78 (2000) (rejecting this argument).

(268.) See, e.g., id. at 778 n.8 (noting the question but not deciding it); Paul R. Verkuil, Outsourcing Sovereignty: Why Privatization of Government Functions Threatens Democracy and What We Can Do About It 106-13 (2007); Evan Caminker, The Constitutionality of Qui Tam Actions, 99 Yale L.J. 341, 374-80 (1989).

(269.) See Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994); Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982); Alexander Volokh, The Constitutional Possibilities of Prison Vouchers, 72 Ohio ST. L.J. 983, 1015-20 (2011); The Vagaries of Vagueness, supra note 136, at 767-68.

(270.) See supra note 130 and accompanying text.

(271.) See Carter v. Carter Coal Co., 298 U.S. 238, 311-12 (1936).

(272.) See id. at 311-12.

(273.) See text accompanying supra notes 141-59.

(274.) See Abramson, supra note X, at 208-09 (calling Carter Coal "[t]he most glaring example of this commingling" and attributing the "persistent" commingling in part to "sloppy judicial analysis").

(275.) See Horton, supra note 137, at 473-74 & nn.205-07 (listing sources that locate private delegation doctrine in the Vesting Clause, the Due Process Clause, or both--and correctly listing Carter Coal as a due process case).

(276.) 402 U.S. 183 (1971).

(277.) Id. at 272 n.21 (Brennan, J., dissenting).

(278.) Id. at 272.

(279.) Fed. Power Comm'n v. New England Power Co., 415 U.S. 352, 354 n.2 (1974) (Marshall, J., concurring in the result and dissenting); see also Hornell Ice & Cold Storage Co. v. United States, 32 F. Supp. 468, 470 (W.D.N.Y. 1940) (stating that "Congress did not unlawfully delegate legislative power to private persons in violation of Article I, Section 1 of the Constitution" but, in justifying why not, distinguishing Carter Coal); Douglas H. Ginsburg & Steven Menashi, Nondelegation and the Unitary Executive, 12 U. PA. J. Const. L. 251, 264 n.72 (2010) ("The nondelegation doctrine ... survives instinctively, ... appearing variously in the guise of the Due Process Clause, see, e.g., [Carter Coal], [and other provisions]."); Posner & Vermeule, supra note 134, at 1722 n.5, 1757; Ira P. Robbins, The Impact of the Delegation Doctrine on Prison Privatization, 35 UCLA L. Rev. 911, 914, 919-20 (1988).

(280.) Paul R. Verkuil, Public Law Limitations on Privatization of Government Functions, 84 N.C. L. Rev. 397, 422 (2006); see also Froomkin, supra note 64, at 151 (treating Carter Coal as having been limited by Currin v. Wallace, discussed above as a non-delegation case); id. at 153 (recognizing due process aspect of Carter Coal).

(281.) Thus, Chief Justice Hughes writes, in his separate opinion in Carter Coal, that the delegation violates (1) non-delegation doctrine and (2) the Due Process Clause. Carter v. Carter Coal Co., 298 U.S. 238, 318 (1936) (separate opinion of Hughes, C.J.). But his non-delegation discussion doesn't refer to the public-private distinction: If the argument in support of the delegation were valid, he writes, it "would remove all restrictions upon the delegation of legislative power, as the making of laws could thus be referred to any designated officials or private persons .... Id. (emphasis added). Only the due process discussion treats the private nature of the delegates as relevant. See id.

(282.) See text accompanying supra notes 164-65.

(283.) Wecht calls Carter Coal a "de facto application of the nondelegation doctrine to private, for-profit entities through the Due Process clause." Wecht, supra note 97, at 824 (section title) (section capitalization removed).

(284.) See text accompanying supra notes 141-59.

(285.) But see Tex. Boll Weevil Eradication Found, v. Lewellen, 952 S.W.2d 454, 467 (Tex. 1997) ("Even in its heyday, the nondelegation doctrine was sparingly applied, having been used by the United States Supreme Court to strike down a federal statute only three times." (citing Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), Carter Coal, 298 U.S. 238)).

(286.) 462 U.S. 919 (1983).

(287.) See id. at 985 (White, J., dissenting).

(288.) 488 U.S. 361 (1989).

(289.) Id. at 373 (citations omitted); see also Tex. Boll Weevil, 952 S.W.2d at 499 n.5 (Comyn, concurring in part and dissenting in part).

(290.) 531 U.S. 457, 474 (2001).

(291.) Synar v. United States, 626 F. Supp. 1374, 1383 n.8 (D.D.C. 1986), aff'd sub nom., Bowsher v. Synar, 478 U.S. 714 (1986).

(292.) I make many of these arguments in my amicus brief supporting the cert petition in this case. See Brief of Alexander Volokh as Amicus Curiae in Support of Petitioners, Dep't of Transp. v. Ass'n of Am. Railroads, No. 13-1080 (Apr. 10, 2014), available at uploads/sites/14/2014/04/Amtrak_Volokh-Amicus.pdf, [].

(293.) See supra notes 164-65 and accompanying text.

(294.) See text accompanying supra notes 217-19.

(295.) But see Ass'n of Am. Railroads v. Dep't of Transp., 865 F. Supp. 2d 22, 31-32 (D.D.C. 2012) (stating that the Association of American Railroads had waived this argument, but "not[ing]" "[i]n passing" that "in light of the FRA's and STB's involvement and Amtrak's political accountability, the potential for bias appears remote" (citation omitted)).

(296.) See Pittston Co. v. United States, 368 F.3d 385, 389 (4th Cir. 2004).

(297.) Id. at 390-91.

(298.) Id. at 393.

(299.) 276 U.S. 394 (1928); see text accompanying supra notes 153-58.

(300.) 531 U.S. 457 (2001); see text accompanying supra notes 249-56.

(301.) See Pittston, 368 F.3d at 394 (citing U.S. Const, art. I, [section] 1; id., art. II, [section] 1; id., art. III, [section] 1).

(302.) Id. (quoting Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936)) (internal quotation marks omitted).

(303.) Id. (quoting Carter Coal, 298 U.S. at 311) (internal quotation marks omitted).

(304.) 310 U.S. 381 (1940); see supra note 159 and text accompanying supra note 214.

(305.) See Newport Int'l Univ., Inc. v. State Dep't of Educ., 186 P.3d 382, 388-90 (Wyo. 2008).

(306.) See, e.g., Louis L. Jaffe, Law Making by Private Groups, 51 Harv. L. Rev. 201, 248 (1937); David M. Lawrence, Private Exercise of Governmental Power, 61 IND. L.J. 647, 662 (1986).

(307.) See supra Part III.B.

(308.) See Tex. Boll Weevil Eradication Found, v. Lewellen, 952 S.W.2d 454, 467 n.10 (Tex. 1997).

(309.) See text accompanying supra note 193.

(310.) Factor (1), the availability of "meaningful review by a state agency or other branch of state government," also sounds like the relevant due process factor of the availability of post-deprivation remedies.

(311.) See Emmett McLoughlin Realty, Inc. v. Pima Cnty., 58 P.3d 39, 41 (Ariz. Ct. App. 2002) (citing ARIZ. CONST, art. IV, pt. 1, [section] 1(1) ("The legislative authority of the State shall be vested in the Legislature....")).

(312.) Id.

(313.) See text accompanying supra notes 51-55.

(314.) Emmett McLoughlin Realty, 58 P.3d at 41 (citing Indus. Comm'n v. C & D Pipeline, Inc., 607 P.2d 383, 385 (Ariz. App. 1979) (citing Carter v. Carter Coal Co., 298 U.S. 238 (1936))).

(315.) See People ex rel. Chi. Dryer Co. v. City of Chi., 109 N.E.2d 201, 204 (Ill. 1952) (citing ILL. CONST, art. IV, [section] 1).

(316.) See Chicagoland Chamber of Commerce v. Pappas, 880 N.E.2d 1105, 1118-19 (Ill. App. Ct. 2007) (citing ILL. CONST, art. IX, [section] 6). The title heading of the section of that case discussing the doctrine is "Nondelegation Doctrine Separation of Powers," id. at 1118, which makes the source of the doctrine clear.

(317.) Chicagoland Chamber of Commerce, 880 N.E.2d at 1120 (citing Chi. Dryer Co., 109 N.E.2d at 201, 204); Chi. Dryer Co., 109 N.E.2d at 205-06 (citing Eubank v. City of Richmond, 226 U.S. 137 (1912), Thomas Cusack Co. v. City of Chi., 242 U.S. 526 (1917), Carter v. Carter Coal Co., 298 U.S. 238 (1936)).

(318.) See text accompanying supra notes 257-70.

(319.) See text accompanying supra notes 241-44, 247.

(320.) See supra Part II.A.3.

(321.) Don't confuse this with the "state action" doctrine of constitutional law. See sources cited supra note 110.

(322.) 317 U.S. 341 (1943).

(323.) Id. at 350-52.

(324.) Bates v. State Bar of Ariz., 433 U.S. 350, 361-62 (1977).

(325.) See Hoover v. Ronwin, 466 U.S. 558, 568 (1984) (summarizing Parker doctrine as to state legislatures and state supreme courts acting in legislative capacity).

(326.) See Fed. Trade Comm'n v. Phoebe Putney Health Sys. Inc., 133 S. Ct. 1003 (2013); Cal. Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980); see also, e.g., Patrick v. Burget, 486 U.S. 94, 100-01 (1988); Alexander Volokh, Supreme Court Antitrust Ruling Supports Public-Private Neutrality, Reduces Barriers to Privatization, REASON.ORG, Feb. 21, 2013, /news/show/scotus-antitrust-privatization, []. William Page has questioned whether active supervision should be required. William H. Page & John E. Lopatka, Antitrust, Federalism, and the Regulatory Process: A Reconstruction and Critique of the State Action Exemption After Midcal Aluminum, 61 B.U. L. Rev. 1099, 1125-26 (1981). But see William H. Page, State Regulation in the Shadow of Antitrust: FTC v. Ticor Title Insurance Co., 3 SUP. CT. ECON. REV. 189 (1993) (justifying the active-supervision requirement as a way to guarantee that states aren't effecting a naked repeal of antitrust law, as they could if all that was required was clear articulation). See also Jarod M. Bona, The Antitrust Implications of Licensed Occupations Choosing Their Own Exclusive Jurisdiction, 5 U. St. THOMAS J.L. & PUB. POL'Y 28, 44-51 (2011) (discussing the application of the state action doctrine to licensing boards).

(327.) 471 U.S. 34, 46 (1985).

(328.) Id.

(329.) Id. at 47.

(330.) Midcal, 445 U.S. at 106 (quoted in Town of Hallie, 471 U.S. at 46-47).

(331.) Town of Hallie, 471 U.S. at 45.

(332.) Id. at 45 n.9.

(333.) Id. at 46 n.10.

(334.) 1 A Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application [paragraph] 226b, at 166 (3d ed. 2006).

(335.) Id.

(336.) Id.; see also Ingram Weber, The Antitrust State Action Doctrine and State Licensing Boards, 79 U. CHI. L. REV. 737, 752-54 (2012). This is one of several attempts, aside from the state action doctrine, see Lebron v. Nat'l R.R. Passenger Corp., 513 U.S. 374, 400 (1995), to classify organizations as public or private. See text accompanying supra notes 188-93 (discussing the Texas Supreme Court's description of the Boll Weevil Eradication Foundation as private for purposes of the Texas non-delegation doctrine), 208-26 (describing the test the D.C. Circuit used to classify Amtrak for purposes of the federal non-delegation doctrine).

(337.) See N.C. Bd. of Dental Exam'rs v. Fed. Trade Comm'n, 134 S. Ct. 1491 (2014) (granting cert).

(338.) Earles v. State Bd. of CPAs of La., 139 F.3d 1033, 1034 (5th Cir. 1998).

(339.) Id. at 1041.

(340.) Id.

(341.) Porter Testing Lab. v. Bd. of Regents for the Okla. Agric. & Mech. Colls., 993 F.2d 768, 770 (10th Cir. 1993).

(342.) Id. at 772.

(343.) Cine 42nd St. Theater Corp. v. Nederlander Org., Inc., 790 F.2d 1032, 1047 (2d Cir. 1986).

(344.) Goldfarb v. Va. State Bar, 421 U.S. 773, 776 (1975).

(345.) Town of Hallie v. City of Eau Claire, 471 U.S. 34, 45 (1985). Goldfarb, the case discussing the Virginia State Bar, had no occasion to discuss whether the active supervision requirement applied, as it was handed down before Midcal enunciated the test in 1980. But Town of Hallie, which announced that municipalities aren't subject to the active supervision requirement, distinguished Goldfarb as involving private parties, unlike the municipality at issue there. Id. at 45. Town of Hallie therefore supports the proposition that the Virginia State Bar, though statutorily defined as a state administrative agency, could be classified on the "private" side of the Town of Hallie distinction.

(346.) Hass v. Or. State Bar, 883 F.2d 1453, 1455-56 (9th Cir. 1989).

(347.) Id. at 1460.

(348.) Id.

(349.) Fed. Trade Comm'n v. Monahan, 832 F.2d 688, 688 (1st Cir. 1987). Pick up stations are locations where patients can "drop off, and pick up, prescriptions that the 'main office' (in the interim) would fill in batches." Id.

(350.) Id. at 690.

(351.) Interface Grp., Inc. v. Mass. Port Auth., 816 F.2d 9, 13 (1st Cir. 1987).

(352.) Bankers Ins. Co. v. Fla. Residential Prop. & Cas. Joint Underwriting Ass'n, 137 F.3d 1293, 1297 (11th Cir. 1998).

(353.) Id. at 1296-97 (citing Commuter Transp. Sys., Inc. v. Hillsborough Cnty. Aviation Auth., 801 F.2d 1286, 1290 (11th. Cir. 1986), Crosby v. Hosp. Auth. of Valdosta, 93 F.3d 1515, 1525 (11th Cir. 1996), and various cases from outside the Eleventh Circuit, as well as the then-current edition of the Areeda-Hovenkamp treatise, supra note 334) (citations omitted).

(354.) See Fuchs v. Rural Elec. Convenience Coop. Inc., 858 F.2d 1210, 1217-18 (7th Cir. 1988).

(355.) In re N.C. Bd. of Dental Exam'rs, 151 F.T.C. 607, 612 (2011); see also supra Part I.B.2.

(356.) Dental Exam'rs, 151 F.T.C. at 613.

(357.) Id. at 620.

(358.) Id. at 621; see also id. at 620.

(359.) Id. at 623.

(360.) Id.

(361.) Id. at 626.

(362.) Id.

(363.) Id. at 621.

(364.) Id. at 626.

(365.) Id. at 628-33.

(366.) N.C. State Bd. of Dental Exam'rs v. Fed. Trade Comm'n, 717 F.3d 359, 368 (4th Cir. 2013), cert, granted, 134 S. Ct. 1491 (2014); see also id. at 376 (Keenan, J., concurring) (noting that the opinion turns not on the mere presence of market participants on the Board but on the fact that the market participants are elected by other market participants). The Fourth Circuit reviewed the FTC's legal findings de novo, with due regard for the FTC's expertise, id. at 370 (majority opinion), which amounts to Skidmore deference, see Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). This case is also discussed in Alexander Volokh, Privatized Regulation and Antitrust, REASON.ORG duly 1, 2013),, []. For another case in the Fourth Circuit raising broadly similar issues, see First Amended Complaint at 11 120-21, Petrie v. Va. Bd. of Medicine, No. l:13-cv-1486, 2014 WL 494273 (E.D. Va. Feb. 3, 2014).

(367.) 134 S. Ct. 1491 (2014).

(368.) 1A AREEDA & HOVENKAMP, supra note 334, [paragraph] 227b, at 209.

(369.) Einer Richard Elhauge, The Scope of Antitrust Process, 104 HARV. L. REV. 667, 696 (1991); see also id. at 697-708 (supporting "a process test that focuses on whether the decisionmakers controlling the restraints are financially interested," and noting that state action doctrine channels this question into "more formal, and conclusory, adjudications of whether the board is public or private").

(370.) See John Shepard Wiley, Jr., A Capture Theory of Antitrust Federalism, 99 HARV. L. Rev. 713, 769-73 (1986).

(371.) Aaron Edlin & Rebecca Haw, Cartels by Another Name: Should Licensed Occupations Face Antitrust Scrutiny?, U. Pa. L. Rev. (forthcoming 2014), available at, [],

(372.) Hass v. Or. State Bar, 883 F.2d 1453 (9th Cir. 1989); see also text accompanying supra notes 346-48.

(373.) See 1A Areeda & HOVENKAMP, supra note 334, [paragraph] 227a, at 207.

(374.) Id.

(375.) Id. [paragraph] 227a, at 207-08.

(376.) See Fuchs v. Rural Elec. Convenience Coop. Inc., 858 F.2d 1210, 1217-18 (7th Cir. 1988); text accompanying supra note 350.

(377.) 1A Areeda & Hovenkamp, supra note 334, [paragraph] 227a, at 208.

(378.) 317 U.S. 341, 351-52 (1943).

(379.) Miss. Code ANN. [section] 73-21-157(3) (West 2013).

(380.) Id. [section] 73-21-157(3)(b).

(381.) Id. [section] 73-21-75(1).

(382.) Id. [section] 73-21-75(4)(b)-(c). Apparently, the statute technically allows for a Board member to be a retired pharmacist, as long as he's licensed and experienced in Mississippi, so it's not technically true that all members must be currently practicing pharmacists.

(383.) Id. [section] 73-21-75(5).

(384.) Id. [section] 73-21-75(3), (5).

(385.) In the federal constitutional context, "for cause" limitations on removal have been held consistent with political accountability, see Morrison v. Olson, 487 U.S. 654, 687-88 (1988); Humphrey's Ex'r v. United States, 295 U.S. 602, 629 (1935), though such limitations might at some point go too far, see Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3151-55 (2010).

(386.) See TEX. AGRIC. CODE [section] 74.106(c) (West 2013) ("A cotton grower who is eligible to vote in a referendum or election under this subchapter is eligible to be a candidate for and member of the board if the person has at least seven years of experience as a cotton grower and otherwise meets the qualifications for the position."); id. [section] 74.106(f) ("An eligible voter may vote for a cotton grower whose name does not appear on the official ballot by writing that person's name on the ballot.").

(387.) See Fed. Trade Comm'n v. Phoebe Putney Health Sys., Inc., 133 S. Ct. 1003, 1016 (2013); Fed. Trade Comm'n v. Ticor Title Ins. Co., 504 U.S. 621, 632-33 (1992); City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 370 (1991); Parker v. Brown, 317 U.S. 341, 351 (1943).

(388.) See, e.g., Warfield Phila., L.P. v. Nat'l Passenger R.R. Corp., No. 09-1022, 2009 WL 4043112, at *3-4 (E.D. Pa. Nov. 20, 2009) (entertaining, though rejecting, antitrust claims against Amtrak).

(389.) See text accompanying supra notes 349-50.

(390.) N.C. State Bd. of Dental Exam'rs v. Fed. Trade Comm'n, 717 F.3d 359 (4th Cir. 2013), cert, granted, 134 S. Ct. 1491 (2014).

(391.) In re N.C. Bd. of Dental Exam'rs, Final Order, No. 9343, 2011 WL 6229615 (F.T.C. Dec. 7, 2011).

(392.) Id. at *25.

(393.) Dental Exam'rs, 717 F.3d at 374. The Fourth Circuit reviewed the FTC's factual findings under the "substantial evidence" standard, id. at 370; its legal findings received Skidmore deference, see supra note 366.

(394.) Dental Exam'rs, 717 F.3d at 374 n.11.

(395.) See Dental Exam'rs, 2011 WL 6229615, at *25.

(396.) Id. at *29, *34.

(397.) Id. at *30.

(398.) Id. at *34.

(399.) Id.

(400.) Id. at *35-39.

(401.) See id. at *36.

(402.) Id. at *37.

(403.) Id. at *37-38.

(404.) See id. at *38-39.

(405.) 15 U.S.C. [section] 1 (2000).

(406.) Am. Needle, Inc. v. Nat'l Football League, 130 S. Ct. 2201, 2208 (2010) (quoting Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 767 (1984) (quoting Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 761 (1984))).

(407.) 15 U.S.C. [section] 2.

(408.) See text accompanying supra notes 355-77.

(409.) See Copperweld, 467 U.S. at 773 n.21.

(410.) Am. Needle, Inc., 130 S. Ct. at 2212 (quoting Copperweld, 467 U.S. at 769; Fraser v. Major League Soccer, L.L.C., 284 F.3d 47, 57 (1st Cir. 2002); Freeman v. San Diego Ass'n of Realtors, 322 F.3d 1133, 1148-49 (9th Cir. 2003); Rothery Storage & Van Co. v. Atlas Van Lines, Inc., 792 F.2d 210, 214-15 (D.C. Cir. 1986); PHILLIP E. Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application [paragraph] 1462b, at 193-94 (2d ed. 2003)) (citations omitted) (second omission in original).

(411.) Id. at 2215-16 (quoting Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 335 (2d Cir. 2008) (Sotomayor, J., concurring in the judgment)).

(412.) Dental Exam'rs, 2011 WL 6229615, at *20-21.

(413.) More precisely, the FTC and the Fourth Circuit may have been wrong here because the cease-and-desist letters may have been protected by Noerr-Pennington immunity. See sources cited supra note 89. On the applicability of Noerr-Pennington to demand letters, see Sosa v. DIRECTV, Inc., 437 F.3d 923, 933-39 (9th Cir. 2006), McGuire Oil Co. v. Mapco, Inc., 958 F.2d 1552, 1560 (11th Cir. 1992), and Coastal States Mktg., Inc. v. Hunt, 694 F.2d 1358, 1367-68 (5th Cir. 1983).

The Board argued it was just trying to enforce state law and that enforcement of state law isn't an antitrust violation, but the Fourth Circuit disagreed, saying "the Board was acting to regulate third parties in a manner not authorized by state law." N.C. State Bd. of Dental Exam'rs v. Fed. Trade Comm'n, 717 F.3d 359, 373 n.9 (4th Cir. 2013), cert, granted, 134 S. Ct. 1491 (2014); see also id. at 364 ("[T]he Board does not have the authority to discipline unlicensed individuals or to order non-dentists to stop violating the Dental Practice Act."); id. at 370 ("[L]etters were sent without state oversight and without the required judicial authorization."). Presumably, though, anyone, including a state board, has a First Amendment right under the Free Speech Clause to tell people that their conduct is illegal and anyone who has a right to sue has a First Amendment right under either the Free Speech Clause or the Petition Clause to send a cease-and-desist letter before suing and thus avoid a lawsuit altogether. It's not clear whether the distinction between a cease-and-desist letter and "order[ing]" someone to stop violating the law can bear the weight the Fourth Circuit sought to place on it.

The Board apparently didn't adequately raise the Noerr-Pennington defense, so it was probably waived. In any case, the reasoning of the Dental Examiners case is far more general and would apply even in cases not covered by Noerr-Pennington.

(414.) 1A Areeda & Hovenkamp, supra note 334, [paragraph] 228b, at 214.

(415.) Id.

(416.) Cf. 13 Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application [paragraph] 2232a, at 444 (3d ed. 2012) ("[D]irect inquiries into the 'reasonableness' of a challenged restraint [in the context of standard-setting] quickly involve the court in a morass of technical issues where neither the judge nor the jury has sufficient expertise to produce acceptable results.").

(417.) 1A Areeda & Hovenkamp, supra note 334, [paragraph] 228b, at 214.

(418.) Id. at 214 n.15 (citing 13 HOVENKAMP, supra note 416, [paragraph][paragraph] 2232a, 2232d, at 443-44, 452-57).

(419.) 13 HOVENKAMP, supra note 416, [paragraph] 2232d1, at 452-54.

(420.) W. [paragraph] 2232d2, at 454-56.

(421.) Id. [paragraph] 2232d3, at 457.

(422.) See text accompanying supra notes 378-82, 389.

(423.) See supra Part IV.A.4.

(424.) See text accompanying supra notes 378-80.

(425.) 15 U.S.C. [section] 15(a) (2012).

(426.) There might be some immunity when the challenged acts were reasonably thought to be valid at the time. See, e.g., Lease Lights, Inc. v. Pub. Serv. Co. of Okla., 849 F.2d 1330, 1334 (10th Cir. 1988); 1A AREEDA & HOVENKAMP, supra note 334, [paragraph] 228d, at 222-27 (arguing that "damages, especially treble damages, seem completely unwarranted when a reasonable actor had no substantial reason to believe that the challenged act was unlawful at the time it acted").

(427.) 435 U.S. 389 (1978).

(428.) Id. at 442-43 (Blackmun, J., dissenting).

(429.) See id. at 402 & n.22 (majority opinion).

(430.) 15 U.S.C. [section] 15(a).

(431.) Cmty. Commc'ns Co., Inc. v. City of Boulder, 455 U.S. 40, 65 n.2 (1982) (Rehnquist, J., dissenting).

(432.) Id. at 60.

(433.) Areeda and Hovenkamp agree with Rehnquist. See 1A AREEDA & HOVENKAMP, supra note 334, [paragraph] 223a, at 79-80; id. [paragraph] 228c, at 214-15.

(434.) 15 U.S.C. [section] 35(a).

(435.) Id. [section] 36(a).

(436.) 1A Areeda & Hovenkamp, supra note 334, [paragraph]2 28cl, at 215.

(437.) Id. [paragraph] 227a, at 202 (emphasizing the limited scope of "the federal legislation immunizing local governments from damages liability"); id. [paragraph] 228cl, at 215; id. [paragraph] 228c2, at 220.

(438.) 466 U.S. 558 (1984).

(439.) See id. at 565-66.

(440.) See id. at 573.

(441.) See id. at 588-89 (Stevens, J., dissenting).

(442.) Id. at 594.

(443.) See id. at 580-81 n.34 (majority opinion); id. at 597-98 (Stevens, J., dissenting) (noting the majority's concern but deflecting it on other grounds); 1A Areeda & HOVENKAMP, supra note 334, [paragraph] 227a, at 201-02 ("The [Ronwin] dissenters did not acknowledge the harshness of imposing potential treble damage liability on Committee members for the silence of the Arizona court, but perhaps they felt it fair and desirable that Committee members should be in peril of treble damages unless they took the initiative in securing more express court approval of the anticompetitive grading formula."). Eldin and Haw argue that this result is desireable. See Eldin & Haw, supra note 371, at pt. IV.A.2.

(444.) 421 U.S. 773 (1975).

(445.) Id. at 788-92; Edlin & Haw, supra note 371, at Pt. IV.A.2.

(446.) Shames v. Cal. Travel & Tourism Comm'n, 626 F.3d 1079, 1081-82 (9th Cir. 2010).

(447.) Id. at 1081.

(448.) Id. at 1084-85.

(449.) Id. at 1085 & n.3.

(450.) Shames v. Hertz Corp., No. 07-CV-2174-MMA(WMC), 2012 WL 5392159, at *3 (S.D. Cal. Nov. 5, 2012). It's not clear from the opinion how much was paid by the Commission and how much by the rental car companies.

(451.) See Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30,47-49, 52 (1994).

(452.) Mancuso v. N.Y. State Thruway Auth., 86 F.3d 289, 293 (2d Cir. 1996). See generally Jameson B. Bilsborrow, Keeping the Arms in Touch: Taking Political Accountability Seriously in the Eleventh Amendment Arm-of-the-State Doctrine, 63 EMORY L.J. (forthcoming 2014).

(453.) Compare, e.g., Town of Smyrna v. Mun. Gas Auth. of Ga., 723 F.3d 640, 651 (6th Cir. 2013) (determining that whether the state is liable is the most important issue), with Benn v. First Judicial Dist. of Pa., 426 F.3d 233, 239-40 (3d Cir. 2005) (finding that financial liability is equal with other factors after Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002)).

(454.) See Tucker v. Williams, 682 F.3d 654, 659 (7th Cir. 2012) (quoting Peirick v. Ind. Univ.-Purdue Univ. Indianapolis Athletics Dep't, 510 F.3d, 681, 695 (7th Cir. 2007)); Gorton v. Gettel, 554 F.3d 60, 62 (2d Cir. 2009) (citing Mancuso, 86 F.3d at 293); Thomas v. St. Louis Bd. of Police Comm'rs, 447 F.3d 1082 (8th Cir. 2006).

(455.) See Pucci v. Nineteenth Dist. Court, 628 F.3d 752, 761 (6th Cir. 2010) (stating that although treasury concern is generally most important, there can be sovereign immunity based on other factors even when treasury concern cuts the other way).

(456.) See Ross v. Jefferson Cnty. Dep't of Health, 701 F.3d 655, 659 (11th Cir. 2012).

(457.) United States ex rel. Oberg v. Ky. Higher Educ. Student Loan Corp., 681 F.3d 575, 580 (4th Cir. 2012); see also S.C. Dep't of Disabilities & Special Needs v. Hoover Universal, Inc., 535 F.3d 300, 305-07 (4th Cir. 2008); Md. Stadium Auth. v. Ellerbe Becket, Inc., 407 F.3d 255, 261 (4th Cir. 2005); Kitchen v. Upshaw, 286 F.3d 179, 185 (4th Cir. 2002).

(458.) Raj v. La. State Univ., 714 F.3d 322, 329 (5th Cir. 2013); Delahoussaye v. City of New Iberia, 937 F.2d 144, 147 (5th Cir. 1991); see also Black v. N. Panola Sch. Dist., 461 F.3d 584, 596-98 (5th Cir. 2006); United States ex rel. Barron v. Deloitte & Touche, L.L.P., 381 F.3d 438, 440 (5th Cir. 2004).

(459.) Justin C. Carlin, State Sovereign Immunity and Privatization: Can Eleventh Amendment Immunity Extend to Private Entities?, 5 FIU L. REV. 209, 212-13 (2009) (limiting this rule to the First, Fifth, Sixth, Seventh, Ninth, and Tenth Circuits; only the Eleventh Circuit has extended sovereign immunity to a private entity contracting with the state, see Shands Teaching Hosp. & Clinics, Inc. v. Beech St. Corp., 208 F.3d 1308, 1311 (11th Cir. 2000)).

(460.) See, e.g., Del Campo v. Kennedy, 517 F.3d 1070, 1072 (9th Cir. 2008); Shands, 208 F.3d at 1311; Carlin, supra note 459, at 222-25.

(461.) See, e.g., United States ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah, 472 F.3d 702, 721 (10th Cir. 2006) (debating the status of a laboratory owned by University of Utah Medical Center); Takle v. Univ. of Wis. Hosp. & Clinics Auth., 402 F.3d 768, 769-71 (7th Cir. 2005) (debating the status of a hospital spun off by University of Wisconsin but retaining many institutional ties with University); Fresenius Med. Care Cardiovascular Res., Inc. v. P.R. & the Caribbean Cardiovascular Ctr. Corp., 332 F.3d 56, 64, 71 (1st Cir. 2003); Sw. Bell Telephone Co. v. City of El Paso, 243 F.3d 936 (5th Cir. 2001); Carlin, supra note 459, at 225-29.

(462.) Del Campo, 517 F.3d at 1074 (citing United States ex rel. Ali v. Daniel, Mann, Johnson, & Mendenhall, 355 F.3d 1140,1147 (9th Cir. 2004)); Carlin, supra note 459, at 223-25.

(463.) See supra Part IV.A.

(464.) 15 U.S.C. [section] 45 (2012); see also 1A AREEDA & HOVENKAMP, supra note 334, [paragraph] 231b, at 245.

(465.) 209 U.S. 123, 157 (1908).

(466.) 15 U.S.C. [section] 15a; 1A AREEDA & HOVENKAMP, supra note 334, [paragraph] 227a, at 202-03.

(467.) Amtrak National Facts, AMTRAK, 968/Amtrak-National-Fact-Sheet-FY2012.pdf, [] (last visited Feb. 5, 2014).

(468.) Tex. Water Code Ann. [section] 26.179(d) (West 2013).

(469.) N.C. GEN. Stat. ANN. [section] 90-39 (West 2013).

(470.) Id. [section] 93B-16(b).

(471.) Id. [section][section] 93B-16(b), 143-299.4; see also Petitioner's Opening Brief at 7, N.C. State Bd. of Dental Exam'rs v. Fed. Trade Comm'n, 717 F.3d 359 (2013) (No. 12-1172), 2012 WL 2931297.

(472.) MISS. CODE ANN. [section][section] 73-21-83, 73-21-103 (West 2013).

(473.) Id. [section] 73-21-113.

(474.) Id. [section] 73-21-73.

(475.) At least one court has considered the labeling as a state agency dispositive and held the Board immune. Claiborne v. Miss. Bd. of Pharmacy, No. 3:07-CV2.77-HTW-LRA, 2011 WL 3684431, at *4 (S.D. Miss. Aug. 22, 2001).

(476.) Miss. Code Ann. [section] 73-21-75.

(477.) See text accompanying supra note 459.

(478.) See, e.g., Garrett-Woodberry v. Miss. Bd. of Pharmacy, 300 F. App'x 289 (5th Cir. 2008); Claiborne, 2011 WL 3684431; Riddle v. Miss. State Bd. of Pharmacy, 592 So. 2d 37 (Miss. 1991); House v. Miss. State Bd. of Pharmacy, 592 So. 2d 946 (Miss. 1991); Duckworth v. Miss. State Bd. of Pharmacy, 583 So. 2d 200 (Miss. 1991); Miss. State Bd. of Pharmacy v. Baker, 365 So. 2d 67 (Miss. 1978); Miss. State Bd. of Pharmacy v. Steele, 317 So. 2d 33 (Miss. 1975); Miss. State Bd. of Pharmacy v. Clemer, 317 So. 2d 37 (Miss. 1975).

(479.) Carter v. Mississippi Department of Human Services, No. 3:05-CV-190 HTWJCS, 2006 WL 2827691 (S.D. Miss. Sept. 29, 2006), states that the Mississippi Board of Nursing has been found to be an arm of the state and immune under the Eleventh Amendment. Carter, 2006 WL 2827691, at *2 (citing O'Neal v. Miss. Bd. of Nursing, 113 F.3d 62 (5th Cir. 1997)). But O'Neal, on inspection, is about official immunity for Board members, not sovereign immunity for the Board. Still, for what it's worth, O'Neal does briefly mention that plaintiffs conceded that the Board of Nursing had sovereign immunity. O'Neal, 113 F.3d at 64.

(480.) Tex. Agric. Code [section] 74.1011 (West 2013).

(481.) Id. [section][section] 74.101(3), 74.129.

(482.) Id. [section][section] 74.115, 74.108(3).

(483.) Id. [section] 74.107(c).

(484.) Id. [section] 74.116.

(485.) Id. [section] 74.109(h).

(486.) See, e.g., Garza v. Tex. Boll Weevil Eradication Found., Nos. 03-11-00787CV, 03-11-0078-CV, 03-11-00789-CV, 03-11-00790-CV, 2012 WL 6726685 (Tex. Ct. App. Dec. 19, 2012).

(487.) TEX. AGRIC. code [section] 74.129; see also id. [section] 74.109(f).

(488.) As noted above, it's relevant in the Eleventh Circuit. See text accompanying supra note 459.

Alexander Volokh, Associate Professor, Emory Law School, I am grateful to Jonathan H. Adler, Thomas C. Arthur, Joanna Shepherd Bailey, William W. Buzbee, Rebecca Haw, Jay L. Himes, Andrew P. Morriss, Jonathan R. Nash, William H. Page, Vladimir Volokh, Michael L. Weiner, and attendees at the 2014 Next Generation of Antitrust Scholars Conference at NYU School of Law for their helpful comments. I am also grateful to Vinita Andrapalliyal, Jameson B. Bilsborrow, Erin E. Cawthorn, and Alexander J. Owings for their able research assistance. This research was funded by an Emory summer research grant and by the Reason Foundation and Express Scripts, Inc., though none of these funders exercised any editorial control over my work, and, indeed, the ideas expressed here stem directly from my previous work, including Volokh, infra note 5; Volokh, infra note 101; Volokh, infra note 237; Volokh, infra note 326; Volokh, infra note 366.
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Title Annotation:III. Non-Delegation Doctrine C. Commingling Non-Delegation and Due Process 2. The Carter Coal Puzzle through V. Conclusion, with footnotes, p. 973-1007
Author:Volokh, Alexander
Publication:Harvard Journal of Law & Public Policy
Date:Jun 22, 2014
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