Unconstitutional delegation

Unconstitutional delegation doctrine is an improper delegation of official authority by a legislative body to another branch of government or, even worse, to a private entity:

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[O]ne person may not be entrusted with the power to regulate the business of another …. And a statute which attempts to confer such power undertakes an intolerable and unconstitutional interference with personal liberty and private property. The delegation is ... so clearly a denial of rights safeguarded by the due process clause of the Fifth Amendment, that it is unnecessary to do more than refer to decisions of this court which foreclose the question.

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Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936) (citing multiple Supreme Court authorities).

“This is legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business." Id. at 311. Delegating to a private hospital official authority of the state to discipline a physician would improperly empower it to take action against the interests of potential competitors where, as here, the physician continues to have medical staff privileges at a competing hospital. This scheme is not merely a delegation to a disinterested entity, but to one that has an incentive to lessen competition improperly in this manner.

"When citizens cannot readily identify the source of legislation or regulation that affects their lives, Government officials can wield power without owning up to the consequences. One way the Government can regulate without accountability is by passing off a Government operation as an independent private concern.” DOT v. Ass'n of Am. R.R., 575 U.S. 43, 57 (2015) (Alito, J., concurring). In other words, "[l]iberty requires accountability.” Id. “They are not bound by any official duty, but are free to withhold consent for selfish reasons or arbitrarily … [such that t]he delegation of power so attempted is repugnant to the due process clause of the Fourteenth Amendment.” Wash. ex rel. Seattle Title Tr. Co. v. Roberge, 278 U.S. 116, 122 (1928) (multiple authorities omitted). The potential for injustice is intolerable when there is a delegation of regulatory power to a private entity. See Yick Wo v. Hopkins, 118 U.S. 356, 366-67 (1886) (“The power given to them is not confided to their discretion in the legal sense of that term, but is granted to their mere will. It is purely arbitrary, and acknowledges neither guidance nor restraint.”).

"It has been clearly established for years that a doctor has no constitutional right to the staff privileges of a hospital merely because he is licensed to practice medicine." Sosa v. Bd. of Managers of Val Verde Mem'l Hosp., 437 F.2d 173, 175 (5th Cir. 1971) (citing Hayman v. Galveston, 273 U.S. 414 (1927)). “John Locke echoed this view. ‘[F]reedom of men under government,’ he wrote, ‘is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it ... and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man.’” DOT v. Ass'n of Am. R.R., 575 U.S. at 72-73 (Thomas, J., concurring) (quoting J. Locke, Second Treatise of Civil Government § 22, p. 13 (J. Gough ed. 1947), emphasis by Justice Thomas omitted).

In Fuentes v. Shevin, the U.S. Supreme Court criticized that:

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The statutes, moreover, abdicate effective state control over state power. Private parties, serving their own private advantage, may unilaterally invoke state power to replevy goods from another. No state official participates in the decision to seek a writ; no state official reviews the basis for the claim to repossession; and no state official evaluates the need for immediate seizure. There is not even a requirement that the plaintiff provide any information to the court on these matters. The State acts largely in the dark.

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Fuentes v. Shevin, 407 U.S. 67, 93 (1972).