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Over the past decade, the Supreme Court has reworked the landscape of executive branch supervision. The Court has both addressed the scope of executive officials subject to the Constitution’s selection constraints in the Appointments Clause and imposed limits on the tenure protections that Congress can bestow on senior agency officials. This refashioning retrenched the functionalist approach that had taken hold in the twentieth century and culminated in the Court’s 1989 blessing of independent counsels with authority to investigate the Executive Branch from within.

One less-explored question is the degree to which federally prescribed tasks can be carried out by individuals other than government officials. In other words, to what extent can Congress authorize private actors to perform statutorily required components of governmental operations such as arbitration of disputes, creation of standards tied to governmental requirements, fact-gathering, or the performance of evaluations where the result leads to qualification or disqualification for a government service or benefit? Justice Alito raised this key question in a 2015 dispute involving Amtrak, when he questioned the constitutional basis for Amtrak to set metrics and standards governing passenger railroad services operating as a private actor. The question continues to plague government practice, as Congress at times prefers to employ private boards or commissions to set standards such as the quantity and type of routine pediatric services that health insurers must cover under the Affordable Care Act.

From the time of the establishment of the first Congress in 1789, the federal government has employed private actors for numerous tasks. Many of those responsibilities, however, involved the provision of contractual services such as measuring the quantities of imported goods, valuing imported items, constructing government buildings, or providing expertise such as autopsy analysis. In modern practice, private boards or arbitration panels have at times made decisions that ultimately bind the rights or obligations of private parties or that establish the substantive content for government mandates. Is there a meaningful, constitutional distinction between the early versus modern acts? What was the understanding at the time of early practice of the limits, if any, that should govern the types of tasks Congress assigned to private actors? Does the non-officer status of private actors free them from constitutional appointments and oaths constraints? Or is there an irreducible minimum of core governmental authority that cannot be delegated to private actors and that must instead be exercised by governmental actors subject to the Constitution’s oath and appointments accountability mechanisms?

This Article will unpack some of those constitutional complexities by examining the early federal practice of delegating adjudicative patent determinations to private experts, which the Supreme Court briefly considered in its most recent review of executive direction of governmental determinations. Specifically, the position of the patent commissioner, first created by Congress in 1836, was bound by fact-findings of private expert panels when denying patent applications. The Court implicitly suggested last year, in United States v. Arthrex, 141 S. Ct. 1970, 1988 (2021), that this practice did not undermine the modern presidential supervisory structure that the Court went on to mandate for the contemporary patent office because the 1836 panels consisted of just private experts, not officers.

What implications, if any, does such a view hold for the scope of power or duties that private actors can exercise outside of the control or supervision of the Constitution, the President, and any constitutional accountability mechanisms purportedly constraining power? Just three years after the 1836 boards’ creation, Congress went on to eliminate them and transfer their duties to a federal judge. But evidence suggests that policy considerations rather than constitutional concerns drove this development.

Although Congress and implicitly the Court apparently have concluded that the binding fact-finding authority of the early boards did not disrupt presidential executive supervision, the evidence suggests that this superficially significant power really was not viewed as constituting core sovereign authority. The Executive Branch today has signed off on far broader private delegation of a potentially constitutionally distinct character. This Article will uncover some of those distinctions and explore how the early view of permissible private delegation, implicitly endorsed by the Supreme Court in 2021, differs substantially from some of the private arbitration and other binding private power that Congress and the Executive Branch have normalized today. The constitutional concerns over too much private delegation raised by jurists such as Justice Alito merit further exploration and may call into question several current governmental practices.

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