Private Enforcement at the Founding and Article II

Article II vests the executive power in the President. Yet Congress routinely empowers private plaintiffs, not just the President, to enforce public regulatory laws. Because of this, in almost every area of law—from environmental and antitrust law to civil rights and securities law—the bulk of enforcement occurs through private civil suits rather than government-initiated litigation. Scholars and originalist judges are, for the first time, seizing on this apparent contradiction to argue that this mode of “private enforcement” may be an unconstitutional delegation of executive power. In TransUnion v. Ramirez, the Supreme Court observed that a “regime where Congress could freely authorize unharmed plaintiffs to sue defendants” would “infringe on the Executive Branch’s Article II authority.”[1] This, along with invitations by Justices Alito and Thomas, ignited a series of lower court cases and historically grounded critiques of private enforcement. In an emblematic case, Circuit Judge Kevin Newsom drew on TransUnion and other cases to argue that “Article II’s vesting of the ‘executive Power’ in the President . . . prevents Congress from empowering private plaintiffs to sue for wrongs done to society.”[2]

This emerging “Article II Challenge” relies, at its core, on a particular reading of Founding Era history and the original meaning of the Vesting Clause. Challengers argue that the Take Care Clause’s command that the President “shall take care that the laws be faithfully executed,” combined with Founding Era history, establishes that public rights claims—those seeking civil penalties or enforcement of regulatory violations against society—must be enforced exclusively by the executive branch. If the Supreme Court embraces this argument, hundreds of statutory schemes and thousands of claims will crumble.

This Article provides a historical corrective and refutes the emerging Article II Challenge. Our original historical investigation of “penal statutes”—a category of Founding-Era regulatory legislation that anticipated modern private rights of action—uncovers the deep constitutional foundation of this tradition of private enforcement. We offer three key historical contributions. First, we demonstrate that Founding Era lawmakers passed reams of statutes empowering private plaintiffs to sue for wrongs done to society, at both the state and federal levels. Private enforcement of regulatory law was ubiquitous in England, colonial America, and the Early Republic, a broader legal history that originalist proponents of the Article II Challenge have overlooked or misunderstood. Second, we show that post-ratification contemporaries saw no conflict between executive power and private enforcement, even when these suits vindicated public rights. Third, we reveal that the Crown, governors, and presidents could not control private penal statute claims through the writ of nolle prosequi or other mechanisms. We demonstrate this by surfacing a previously neglected 1791 case in which President Washington and Secretary Hamilton concluded that the President could not control civil litigants seeking statutory penalties, even when they proceeded nominally on behalf of the United States. This historical evidence weakens both the Article II Challenge and the “unitary executive” theory because it shows that Congress was free to empower private plaintiffs to execute the law. We then supplement those historical insights with an analysis of contemporary legal doctrines governing executive control over private enforcement. We conclude that private enforcement does not violate Article II, except under extremely narrow conditions. Our proposed constitutional test would leave most private enforcement schemes untouched. Ultimately, this Article provides a comprehensive historical and doctrinal defense of private enforcement writ large.

Table of Contents Show

Introduction

Texas and California are currently locked in battle over the use of private lawsuits as a regulatory mechanism. Texas kicked off the fight with S.B. 8, a bill that banned abortions in the state by allowing “any person” to file claims against abortion providers.[3] California responded with S.B. 1327, empowering any citizen to sue gun manufacturers in some circumstances.[4] Governor Newsom dared the Supreme Court to declare California’s “private right of action” unconstitutional.[5]

Nearly every regulatory area faces similar debates regarding private enforcement suits. For instance, while federal legislation dominates public debates over privacy and tech regulation, private litigants have long shaped the field through lawsuits. This is why Utah recently permitted lawsuits against social media companies for “adverse mental health outcomes” to users.[6] In environmental law, opponents of housing construction, green energy, and mass transit projects have weaponized the National Environmental Policy Act and more than seven hundred state private rights of action, leading an exasperated scholar to argue that private enforcement “exacerbates climate change.”[7] And this merely scratches the surface.

Most observers underestimate the crucial role private lawsuits play in enforcing regulatory law. In key areas of federal regulation, private parties are the primary enforcers, filing over 90 percent of antitrust claims, 98 percent of civil rights claims, and a majority of wages and hours, environmental, and securities fraud claims.[8] There are more than 350 federal private rights of action and more than ten thousand across the fifty states.[9] This system defines American governance—almost uniquely in the world, federal and state governments deliberately empower private plaintiffs, not just public bureaucrats, to enforce most statutes.[10]

Yet, the historical pedigree of private enforcement is facing unprecedented attacks on multiple fronts. In a major 2021 standing case, TransUnion v. Ramirez, Justice Kavanaugh wrote that “until the twentieth century, Congress rarely created ‘citizen suit’-style causes of action for suits against private parties by private plaintiffs who had not suffered a concrete harm.”[11] Justice Thomas has repeatedly sought a vehicle to declare a type of private enforcement (qui tam) unconstitutional, dismissing the “early history of federal qui tam statutes.”[12] In a related context, debates over Article II and the history of presidential power, including qui tam claims, are intensifying. Scholars and courts clash over the original meaning of executive power, nondelegation, and whether the “unitary executive” theory has support in Founding Era history.[13] The history of private enforcement is highly relevant to this debate, too.

These historical arguments are rapidly coalescing into a broader originalist theory that private enforcement may be an unconstitutional delegation of executive power to private plaintiffs. In TransUnion, the Supreme Court observed that “[a] regime where Congress could freely authorize unharmed plaintiffs to sue defendants who violate federal law would not only violate Article III but also would infringe on the Executive Branch’s Article II authority.”[14] Both Justices Thomas and Alito have welcomed challenges to private enforcement, with the latter noting that “it raises ‘[d]ifficult and fundamental questions’ about ‘the delegation of Executive power’ when Congress authorizes citizen suits.”[15]

In three recent decisions, the Court expressed concerns about enabling private individuals to file lawsuits that vindicate a public interest, even beyond the context of standing.[16] Lower courts, including the Fifth and Eleventh Circuits, are now seizing on TransUnion’s suggestive language to welcome Article II challenges.[17] Judge Kathryn Mizelle went furthest, declaring the False Claims Act’s qui tam provision unconstitutional under Article II (for the first time in 160 years).[18] And in an emblematic case, Circuit Judge Kevin Newsom quoted TransUnion and other recent cases to press that “Article II’s vesting of the ‘executive Power’ in the President and his subordinates prevents Congress from empowering private plaintiffs”—including those challenging accommodations under the Americans with Disabilities Act—“to sue for wrongs done to society in general or to seek remedies that accrue to the public at large.”[19] His argument largely rested on an originalist reading of Founding Era history, drawing on both Blackstone and an article by Justice Scalia.[20]

The core argument underlying the Article II Challenge applies to several statutory devices—including qui tam and class actions—that allow plaintiffs to enforce the law without a direct personal injury. If the Article II Challenge succeeds, major federal statutes, along with thousands of claims, would be upended.

This Article provides a historical corrective and refutes the emerging Article II argument that the Constitution prohibits private enforcement of the law for public wrongs. Our original historical investigation of “penal statutes,” the historical precursors of modern rights to sue, uncovers the constitutional foundation of private enforcement. Private enforcement of regulatory law was ubiquitous in England, colonial America, and the Early Republic, a broader legal history that originalists have either overlooked or misunderstood. This finding weakens both the Article II Challenge and the “unitary executive” theory by demonstrating that Congress was free to empower private plaintiffs to execute the law. Ultimately, we argue that private enforcement does not violate Article II, except when it extracts punitive remedies, enforces governmental property interests, or crowds the Executive out from enforcement entirely—and even then, only under narrow conditions.[21] This leaves most private enforcement schemes untouched.

Parts I and II of the Article briefly lay out the current state of private enforcement across all federal laws. Part III—the heart of the article—presents original evidence on three historical questions:

First, did Parliament, colonial assemblies, state legislatures, and early Congresses empower private plaintiffs to sue for public wrongs? Yes. Previous scholarship from the 1990s highlighted only the existence of qui tam claims and focused on its implications for Article III standing.[22] Shifting the focus to Article II, we surface previously neglected sources that illustrate the prominence of private enforcement of regulatory law in England, colonial America, and the Early Republic.[23] This broader legal context reveals the deep constitutional foundation of private enforcement. As the English political economist and statesman Charles Davenant put it in 1699, “Law-givers have many times fortify’d their Laws with Penalties wherein Private Persons may have Profit, thereby to stir up the People to put the Laws in Execution.”[24] This historical evidence directly contradicts Justice Kavanaugh’s claim in TransUnion: American lawmakers routinely empowered informers to file suit against private parties.

Second, did Founding Era and post-ratification contemporaries perceive penal statutes and private enforcers as infringing on executive power? No. State legislatures continued to enact “penal statutes” even after many states “vested” their executive branches with powers and duties analogous to those conferred by Article II.[25] Even when these suits vindicated patently public rights (like interests in common lands, or mere compliance with regulations) contemporaries did not perceive them as infringing on executive power. The Framers (including John Adams, Thomas Jefferson, James Madison, and Alexander Hamilton) understood and participated in this broader legal culture of private enforcement—as did pivotal early jurists like Joseph Story and John Marshall.[26] Simply stated, the Americans who framed and ratified the Constitution saw no conflict between widespread private enforcement and Article II’s executive power.

Third, and relatedly, does Article II grant the President exclusive control over claims—qui tam or otherwise—filed on behalf of the United States? We agree with Alexander Hamilton and George Washington that it does not. We surface a previously neglected case, involving violations of the 1790 customs act by a customs officer, Samuel Dodge, who permitted a vessel to unload molasses in the dark. He was thereafter indicted by a private enforcer (an informer) suing in the name of the United States for a $400 fine to be split between the informer and the government. Dodge asked Washington for a pardon, who then requested Hamilton’s advice. Lawyers for the Treasury Department gave Hamilton a clear answer: Washington could remit only the United States’ portion of the fine and other criminal punishments in the act but could do nothing about the penalty awarded to private individuals.[27] Hamilton and Washington proceeded accordingly, agreeing that the Executive had no power to displace a private claim, even when brought formally in the name of the United States.[28] This case strongly undercuts Judge Mizelle’s recent holding that the FCA’s qui tam violates Article II, as originally understood.

In answering these three historical questions, one of our key contributions is to demonstrate that the British Crown, governors, and presidents had no control over private enforcement of civil claims because those claims were seen as property of the plaintiff. The Crown, and later governors and presidents, to be sure, could enter a writ of nolle prosequi (“unwilling to prosecute”) or pardon, to stay any criminal proceeding, even by a private prosecutor.[29] This was an important check. But one of our main findings is that nolle prosequi and pardons were inapplicable against the Founding Era suits most directly analogous to modern private enforcement: actions on penal statutes. In both England and America, executive officials had little control over these suits, even though contemporaries understood them as a means of enforcing regulatory law. This neglected history reveals that Article II critics have seriously misunderstood the historical evidence.

In Part IV, we move beyond the history to weave together how courts view core concerns about executive power and discretion in different strands of law. Private enforcement of the law is nothing new,[30] and federal courts have built up robust but disparate doctrines to address it in many other areas of law. As we show, modern doctrine largely reflects—albeit in fragmented form—the same baseline assumptions that shaped Founding Era practice.

Part V brings the history and doctrine together to reject the Article II Challenge and, instead, proposes that private enforcement faces constitutional problems only in three narrow areas: criminal prosecution, enforcement of public property rights, and when the Executive is crowded out from enforcement. And even these categories raise problems only when the Executive is not given sufficient control over the claim. For example, Article II may limit Congress’ power to create exclusively private enforcement regimes. Were Congress to simultaneously empower private plaintiffs in an area of public law and prohibit federal officials from both (a) exercising control over the private lawsuits (by pardon or dismissal) and (b) enforcing that same law in parallel, it may violate Article II. We apply that test to our review of private enforcement schemes and find that few, if any, raise constitutional problems.

Two more points of clarification before proceeding. To be clear, refuting the Article II Challenge to private enforcement is a distinct enterprise from debates about private litigants’ Article III standing. Because we defend private rights of action writ large, any Article II problems that we identify apply regardless of how a court may describe a plaintiff’s injury. True, the Supreme Court’s recent attention to private enforcement has been almost entirely based on standing limitations in cases like TransUnion. And we recognize, as Tara Grove does, that “[s]tanding doctrine helps ensure that private parties do not exercise” executive power.[31] Chief Justice Roberts, too, has recognized that “Article III standing” ensures the Court does not trample on “the executive’s responsibility of taking care that the laws be faithfully executed.”[32] But we set standing to the side because we agree with James Pfander and Judge Newsom that the Supreme Court’s standing jurisprudence is not historically grounded.[33] We therefore reference standing doctrine only as another lens for understanding how courts consider the practical concerns at issue in the Article II context.

As to our method of constitutional interpretation, our review of the history of private enforcement and its implications leads to a critique of originalist theories of Article II, which is internal to the methodology of originalism. To the extent that proponents of the Article II Challenge rely on original public meaning, their reading of the history is contradicted by Founding Era practice. Moreover, Part IV focuses instead on case law—the core concern is identifying whether the Article II Challenge fits within the legal landscape.[34] Our argument is that it does not. Instead, the legal landscape implies that private enforcement is constitutional.

I. Private Enforcement of Federal Law

The term “private enforcement,” as we use it here, refers to statutory reliance on private parties to file lawsuits for private or public remedies.[35] This type of enforcement can be contrasted from administrative regimes that empower public agencies to file lawsuits. The focus of this definition is on deliberate congressional action to empower private parties as a solution to a legislative problem. It is broad because it captures all private rights of action in federal law (but not common law). Our focus is on private enforcement regimes that empower private parties to enforce public laws.

A.   Situating Private Enforcement

Congress has adopted private enforcement regimes in almost every area of public law. In the Sherman Act of 1890, Congress built in private enforcement as a cornerstone of antitrust law. Seventy years later, the Civil Rights Act of 1964 then kicked off the modern congressional trend of inserting private rights of action into most federal regulatory statutes, making private parties “the main vehicle of statutory enforcement” in many regulatory areas.[36]

Take, for instance, the Americans with Disabilities Act of 1990 (ADA), a key statute in the federal private enforcement landscape.[37] The ADA bars discrimination against disabled individuals in “any place of public accommodation.”[38] While the Department of Justice has enforcement authority, the statute also empowers “any person who is being subjected to discrimination on the basis of disability in violation of [Title III]” to bring a civil action.[39] The ADA’s private right of action is particularly broad, allowing not just any injured person to sue but also anyone “who has reasonable grounds for believing that [they are] about to be subjected to discrimination.”[40] Such a person can file a suit for “preventive relief” and need not “engage in a futile gesture” of actually suffering an injury, as long as they have notice that a covered entity will not comply with the Act.[41] While private parties cannot recover damages,[42] the federal government has described “private suits” as “an essential complement to [its] enforcement.”[43] The ADA’s private right of action exists within a broader private enforcement landscape, which we attempt to canvas below.[44]

Private Enforcement for Public Harms. These schemes empower private citizens and groups to ensure that federal regulations are enforced.[45] Private plaintiffs play a crucial deterrent role that is key to a federal regulation’s success. A clear example of private enforcement for a public harm is the Clean Air Act (CAA) and its companion, the Clean Water Act (CWA).[46] Congress adopted the CAA in 1970,[47] crafting a powerful PRA that allows:

any person [to] commence a civil action on his own behalf . . . against any person . . . who is alleged to have violated . . . or to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation.[48]

This provision was “explicitly justified as a mechanism that would deputize ‘private attorneys general’ to assist the Environmental Protection Agency (EPA) . . . in the enforcement of environmental regulation.”[49] Congress’ “primary goal . . . was to protect the public interest.”[50] Since its adoption, several groups have become forceful enforcers of the statute, including the Natural Resources Defense Council and the Sierra Club Legal Defense Fund.[51] Yet one feature of the statute is that plaintiffs cannot collect damages—the remedy is almost always an injunction, along with attorneys’ fees and costs.[52] More recent amendments allow CAA and CWA plaintiffs to collect “civil fines payable to the Treasury.”[53] And, of course, plaintiffs “can settle their suits, even where settlement is not expressly authorized, on terms that include cessation of violations, supplemental environmental projects, and payment of monies to the plaintiff or other organizations.”[54]

Private Enforcement and Qui Tam. Qui tam is an ancient writ that allows a plaintiff to sue on behalf of the government, usually for an injury or fraud on the public fisc.[55] For instance, the most prominent qui tam provision is embedded in the 1863 False Claims Act (FCA), a statute that “imposes civil liability upon ‘[a]ny person’ who, inter alia, ‘knowingly presents, or causes to be presented, to an officer or employee of the United States Government . . . a false or fraudulent claim for payment or approval.’”[56] Put differently, the statute prohibits fraud on the government. “[A] private person (the relator) may bring a qui tam civil action ‘for the person and for the United States Government’ against the alleged false claimant, ‘in the name of the Government.’”[57]

While qui tam is a kind of private enforcement in which a relator receives a bounty, it also has unique features that distinguish it from other schemes. First, qui tam claims are brought on behalf of the government, not the private plaintiff. The injury is solely the government’s own interest in preventing fraud. Second, the False Claims Act affords the government control over the claim—the Executive can usually end qui tam claims at any time. Finally, qui tam plaintiffs benefit through a bounty: a fee that comes “out of the [government’s] recovery for filing and/or prosecuting a successful action on behalf of the Government.”[58] Based on these differences, some scholars and courts have attempted to distinguish between qui tam actions and private enforcement of public laws. As we fully explore in Part V below, we think this distinction should not be overstated. There is good evidence that qui tam served as a model for modern private enforcement and that Congress believed that many new statutory regimes were consistent with traditional qui tam principles.[59] We therefore take a middle-ground position: We view qui tam as a form of private enforcement, while recognizing that courts may treat those schemes differently.

Private Rights of Initiation. Several statutes create a unique form of private enforcement that empowers plaintiffs to sue the government for failing to pursue its regulatory obligations. For instance, under the Clean Air Act, “citizen enforcement may compel the Administrator [of the EPA] to perform a nondiscretionary duty.”[60] Cass Sunstein and Richard Stewart term these “private right[s] of initiation.”[61] The private party “challenges an agency’s failure to take action,” and in that sense, initiates a dialogue between courts and agencies over their statutory duties.[62] Private rights of initiation, then, are a different variant of private enforcement—one that empowers a party to sue only the government. To be sure, these rights implicate similar values and principles as private enforcement. But because they are distinct, we do not focus on these rights of action.[63]

B.   Quantifying Private Enforcement

To better understand the vast legal landscape that the Article II Challenge threatens, we compiled express private rights of action in federal law to create a dataset we revisit in Part V.C. Quantifying the scope of private enforcement is a useful way to evaluate the Article II Challenge’s potential impact—if successful, this constitutional theory could invalidate hundreds of statutory provisions that form the backbone of American regulatory enforcement. Understanding the full extent of private enforcement also reveals how embedded these tools have become in federal law, making clear that the Article II Challenge represents not a narrow constitutional correction but a transformation of American governance.

We first obtained a publicly accessible version of the entire U.S. Code assembled by the Office of the Law Revision. We then used thirty keyword queries one of us developed in a previous project that identified private rights of action in state law, such as “may sue,” “file an action,” and “shall be liable.” This first step produced 3,324 subsections to analyze. Next, we used a large language model to identify which of the filtered subsections contained private rights of action. Finally, we manually reviewed a large sample of the results to ensure high accuracy. Our process identified:

·      382 subsections of the U.S. Code associated with a private right of action.

·      237 PRAs occurring near a fee-shifting clause (approximately 62 percent).

·      252 PRAs occurring near a multiple damages clause (approximately 66 percent).

·      Most PRAs appear in areas of the U.S. Code associated with Commerce and Trade, Public Health and Welfare, Transportation, and Labor.

Focusing on the more robust forms of private enforcement, we then quantified federal PRAs that are associated with a multiples damages or fee-shifting clause.[64] The private enforcement literature sees these provisions as evidence of legislative mobilization of private plaintiffs.[65] Relying on this literature, we utilized a methodology similar to Sean Farhang’s,[66] that is, focusing on the presence of a fee-shifting or multiple damages clause. We found 237 private rights occurring near a fee-shifting clause (approximately 62 percent) and 252 private rights occurring near a multiple damages clause (approximately 66 percent). Farhang’s work found about three hundred federal PRAs associated with fee shifting or multiple damages. The fact that our method produced a similar number (382 total) is a significant validation of our findings, which demonstrate that if anything, Farhang’s work may underestimate the number of private enforcement schemes in the U.S. Code. Appendix A describes our methodology. The table below excerpts the top fifteen areas where most PRAs appear:

Table 1: Top 15 Titles for PRAs

Title Number (Title Name)	PRAs (Adjusted)
Title 15 (Commerce And Trade)	57
Title 42 (The Public Health And Welfare)	55
Title 49 (Transportation)	33
Title 29 (Labor)	21
Title 26 (Internal Revenue Code)	15
Title 18 (Crimes And Criminal Procedure)	15
Title 17 (Copyrights)	15
Title 12 (Banks And Banking)	14
Title 16 (Conservation)	14
Title 7 (Agriculture)	12
Title 28 (Judiciary And Judicial Procedure)	11
Title 47 (Telecommunications)	10
Title 46 (Shipping)	10
Title 33 (Navigation And Navigable Waters)	9
Title 22 (Foreign Relations And Intercourse)	7

PRAs, then, appear throughout the U.S. Code and in different areas of the law. Many of them contain fee-shifting provisions that incentivize private litigation.[67]

II. The Article II Challenge

Proponents of the Article II Challenge argue that private enforcement schemes cannot empower private plaintiffs to exercise prosecutorial discretion or to proactively enforce the law because only the Executive may do so. This concern intensifies when unharmed plaintiffs—those who suffered no direct personal injury—file claims to vindicate public rights, essentially performing executive enforcement functions rather than seeking personal remedies.[68] Finally, proponents of the Challenge argue that private enforcement schemes can improperly pursue remedies that accrue to the public at large.[69]

The underlying concern is that when private litigants sue in a manner that punishes public harms and vindicates public rights, they not only short-circuit executive discretion but also avoid public accountability. At its core, moreover, is the historical premise that “at common law, individual plaintiffs could sue over violations of their own private rights, but not for violation of public rights, like a defendant’s general noncompliance with the law.”[70]

We recognize that describing the Challenge could give undue legitimacy to what might be more easily dismissed as an ends-focused tool for defanging the regulatory state. But as we explain below, the theory has already begun to gain prominence, and we see scholarly value in exposing its weaknesses on its own terms.[71]

A.   The Article II Challenge’s Jurisprudential Roots

Judges seem increasingly receptive to the argument that private enforcement can violate Article II, even though it contradicts long-running case law holding that private enforcement of the law is definitively constitutional.[72] The Supreme Court itself indicated (indirectly) that it may be open to the Article II Challenge: Civil-suit standing cases warn that Congress cannot transfer the President’s power to enforce the law to private plaintiffs. Additionally, the Supreme Court has reserved the question of whether the qui tam violates Article II, and several Appointments Clause cases open the door to the possibility that delegation to private plaintiffs could violate the Appointments Clause.

1.   Standing Doctrine’s Article II Undercurrents

Standing doctrine has served in part to guard the Executive’s prerogative to vindicate the public interest through exclusive public suits.[73] In Valley Forge Christian College v. Americans United for Separation of Church and State, Lujan v. Defenders of Wildlife, and TransUnion v. Ramirez, the Supreme Court signaled that private parties cannot enforce the law without a direct injury at stake. For instance, in Valley Forge, the Court voiced a “concern that certain classes of injuries could give private individuals an unlimited amount of prosecutorial discretion.”[74] In denying a non-profit organization’s standing to challenge a federal government conveyance of property to a Christian college, the Court noted that the organization could not merely assert that “the Constitution has been violated.” This implies that a private organization could not take on the role of enforcing the Establishment Clause without a more direct injury to its interests. The Court made its reliance on Article II explicit in Allen v. Wright. While rejecting taxpayer standing to challenge exemptions for allegedly discriminatory private schools, the Court explained that “[t]he Constitution, after all, assigns to the Executive Branch, and not to the Judicial Branch, the duty to ‘take Care that the Laws be faithfully executed.’”[75]

Although the Court temporarily distanced itself from this Article II justification for standing after Valley Forge,[76] it again made the Article II basis for standing doctrine explicit in its most recent major standing case. In TransUnion, a case involving a class action claim over alleged violations of the Fair Credit Reporting Act, the Court explained that “[a] regime where Congress could freely authorize unharmed plaintiffs to sue defendants who violate federal law would not only violate Article III but also would infringe on the Executive Branch’s Article II authority.”[77] Justice Kavanaugh’s opinion also made a specific—and mistaken—claim about the history: that “until the 20th century, Congress rarely created ‘citizen suit’-style causes of action for suits against private parties by private plaintiffs who had not suffered a concrete harm.”[78]

Finally, in Friends of the Earth, the Court held that the Clean Water Act’s citizen-suit provisions enabled private litigants to extract from defendants monetary penalties payable to the government.[79] Finding that private plaintiffs had standing to extract penalties payable to public coffers, the Court explained that “[s]uch penalties may serve, as an alternative to an injunction, to deter future violations and thereby redress the injuries that prompted a citizen suitor to commence litigation.”[80] The opinion prompted Justice Kennedy to observe that “[d]ifficult 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.”[81]

Finding that these Article II questions had not been properly raised, Justice Kennedy left them “best reserved for a later case.”[82]

2.   Qui Tam’s Article II Problem

In the context of qui tam, too, litigants, judges, and the executive branch have at times indicated that empowering private plaintiffs to bring claims on behalf of the government can intrude on executive power.[83] In Vermont Agency, the Court declined to address whether qui tam suits violate the Take Care Clause but left open the possibility, noting: “In so concluding, we express no view on the question whether qui tam suits violate Article II.”[84] Although Justice Thomas joined that opinion in full, he has more recently written separately to endorse the argument that the qui tam scheme may improperly usurp executive power under the Take Care Clause and the Appointments Clause.[85] Justice Thomas and others believe that only the Executive can bring cases on behalf of the United States and pursue remedies for public harms. Even the Executive, for its part, has equivocated on the constitutionality of qui tam actions: A Department of Justice’s Office of Legal Counsel Opinion by William P. Barr initially concluded that relator-initiated qui tam suits violated Article II.[86] But only a few years later, that same office reversed course, embracing qui tam’s constitutionality.[87]

As described in our Introduction, a recent trio of Supreme Court cases has revived, but ultimately dodged, the core question of whether qui tam suits violate Article II: Polansky, Whole Woman’s Health, and Viking River Cruises, Inc.[88] The upshot is that the Supreme Court has arguably embraced several different ingredients of the Article II Challenge: The civil-suit standing cases warn that Congress cannot transfer the President’s power to enforce the law to private plaintiffs; Vermont Agency reserves the question whether the qui tam violates Article II.

3.   Articulating the Article II Challenge

Drawing on the Court’s signals, Eleventh Circuit Judge Kevin Newsom recently articulated a comprehensive and originalist Article II challenge to private enforcement in Laufer v. Arpan LLC. The case involved Laufer, a disabled plaintiff and self-styled advocate, who sued a hotel for denying disabled guests an equal opportunity to make reservations for accessible guest rooms.[89] Laufer had neither visited the hotel nor attempted to make a reservation there. Instead, she merely visited the hotel’s website. By her own admission, Laufer was a “tester,”[90] an advocate who specializes in monitoring whether “places of public accommodation and their websites comply with the ADA.”[91] In this capacity, Laufer filed more than fifty ADA lawsuits against hotel owners for alleged noncompliance with ADA regulations. Laufer took advantage of a broad private right of action in the ADA, empowering any “aggrieved” person to file a claim.[92] But Laufer admitted that “she ha[d] no intention to visit the [hotel].”[93]

The key question in the case (and the parallel case that the Supreme Court later disposed of as moot)[94] was whether Laufer suffered a concrete injury under Article III. The Eleventh Circuit quickly answered yes, because a tester can satisfy Article III standing by showing an “emotional injury” from discrimination.[95] But Judge Newsom’s concurrence took the case into Article II territory. In his telling, “Article II’s vesting of the ‘executive Power’ in the President and his subordinates prevents Congress from empowering private plaintiffs to sue for wrongs done to society in general or to seek remedies that accrue to the public at large.”[96] An ADA plaintiff, in this view, “principally seeks to advance the rights of disabled people generally.”[97] When a plaintiff does that, Newsom argued, they are unduly exercising executive power for the three reasons outlined in Part II above: (1) they usurp executive discretion, (2) sue to vindicate a public harm, and (3) extract a remedy payable to the public.

Judge Newsom drew on the case law described above for each of these points—with particular emphasis on TransUnion—but added a focus on history. Drawing on historical scholarship concerning prosecutorial discretion, Judge Newsom first noted that “enforcement discretion is a proper aspect of the executive function.”[98] That is so because “a central premise of our constitutional order” is to provide “structural checks against the exercise of arbitrary power.”[99] He observed that Laufer “literally manufactures her own standing . . . by bringing herself to the source of her own injury.” This violates Article II, he proposed, because “[t]esters exercise the sort of proactive enforcement discretion properly reserved to the Executive Branch,” even though they are “accountable to no one.”[100] As to the second concern, Judge Newsom has elsewhere argued that the “Framing-era evidence” similarly “indicates that the President’s constitutional power ‘to enforce the execution of [the] laws’” includes “the pursuit of what we would recognize today as civil sanctions—for example, ‘pecuniary mulcts’ (i.e., fines) and “suspension[s] or divestiture[s] of privileges.”[101] Third, as to remedy, Judge Newsom noted that the remedy to an ADA tester does not accrue to the plaintiff “but rather to society at large”[102] because Laufer admitted that even though she sought “an injunction ordering the hotel to review their websites,” she had no intention to visit the hotel and could not possibly benefit from the hotel’s change to its policies.[103] His theory of executive power adds nuance and gravity to the calls to attack private rights of action on an Article II basis. This focus on history builds on then-Judge Antonin Scalia’s influential 1983 law article on standing doctrine.[104]

A critical assumption of the Article II Challenge is that there is a clean dichotomy between public and private rights—but this is not necessarily the case. Infringement on rights considered inherently public, such as the right to clean shared air, may be exercised on an individual basis. Taken to its extreme, this private rights-public rights dichotomy could upend private enforcement in the United States. Like torts, nearly all statutory rights of action seek to redress injuries and deter harmful behavior. In that sense, they promote the public interest through the adjudication of private rights, with no opportunity for executive enforcement discretion. Moreover, if Judge Newsom’s interpretation of the historical evidence is correct, modern class actions, which are far more concerned with deterrence than compensation and permit a few private litigants to bring claims on behalf of thousands or even millions of others, would be seriously out of step with the original meaning of Article II.

B.   The Article II Challenge in Scholarship

A long thread of scholarship in administrative law and federal courts has questioned the constitutional validity of private enforcement regimes based around an executive nondelegation doctrine. Somewhat analogous to the judicial challenge, the academic argument can be summarized as follows: Article II can prevent Congress from delegating the executive power to impose punishment on legal violations and exercise prosecutorial discretion. Congress crosses the line when, in effect, its delegation usurps the Executive’s role to ensure that “an area of federal law is obeyed.”[105]

In administrative law, scholars have considered the possibility that delegation of executive power to private parties can violate the separation of powers. Gillian Metzger observed that private civil-suit provisions and qui tam lawsuits could violate the separation of powers as improper exercises of delegated governmental power by a private entity.[106] To remedy this, Metzger once argued for a pure private nondelegation doctrine that would impose restrictions on private actors when they act as government agents for the purposes of policing government contracts, private prisons, and private-public partnerships for the administration of public benefits.[107] But her critique was more narrowly focused on the role of private parties in policing executive power. Building on Metzger’s critique, Dina Mishra has argued that “the executive power” cannot be delegated, and that any delegation in which the Executive sacrifices control over the party exercising executive power may violate separation of powers and be unconstitutional.[108] Applying her theory to contracts with private prisons, Mishra posited that this nondelegable executive power might include the power to impose punishment and extract violence as well as the power to interpret statutes for the purposes of execution.[109] Other scholars have since drawn the same connection.[110]

Federal courts scholarship, too, has developed its own version of an Article II nondelegation doctrine. Tara Leigh Grove has argued that modern standing doctrine ought to be reframed in Article II terms, and that Article II’s implicit nondelegation requirement “prohibits the delegation of the Executive Branch’s duty to see that federal law or an area of federal law is obeyed.”[111] In other words, Grove identifies a similar executive nondelegation doctrine as Mishra but cloaks it in the language of standing.[112] Other scholars have recognized that the Supreme Court’s increasingly cramped view of Article III standing after TransUnion throws into question whether qui tam relators have standing to bring their claims.[113] One has connected Grove’s theory with Newsom’s concurrence in Laufer to argue that such a doctrine of standing might permit cases that the Supreme Court has rejected on standing grounds to move forward while excluding a narrow class of cases, like the tester-plaintiff case, on Article II grounds.[114]

A third class of scholars leaves aside constitutional arguments to make normative critiques of private enforcement as potentially threatening individual rights, particularly when states create regimes that may conflict with federally protected rights.[115] Some of this scholarship has reemerged in the wake of Texas’s anti-abortion law, S.B. 8. That law empowered “anyone” to sue abortion providers for performing abortions—even though abortion remained constitutionally protected at the time.[116] In response, some scholars argued that such aggressive use of private enforcement violated Article II and the Due Process Clause. These arguments begin to share similarities with the Article II Challenge. For instance, Howard Wasserman and Charles Rhodes argue that individuals suing pursuant to S.B. 8 are state actors.[117]

*          *          *

We can summarize the constitutional challenge as follows: Article II protects a core of executive nondelegable powers, including prosecutorial discretion (or the ability to pick and choose when to enforce the law), the duty to engage in proactive enforcement of the law (so as to ensure that an area of federal law is obeyed), and the ability to seek remedies that accrue to the public at large. Congress cannot delegate a combination of these powers to private enforcers.

III. Private Enforcement and Executive Power in the Founding Era

Originalist critics argue that “executive Power” in the eighteenth century entailed an exclusive discretion over law enforcement; as a result, the “Vesting” and “Take Care” clauses of Article II limit the ability of Congress to empower private litigants to enforce federal law.[118] To the extent these critics seek to call private civil enforcement into question, their challenge raises a concrete historical question: Were regulatory statutes empowering private parties to bring a civil cause of action seen as an affront to executive power in the Founding Era?

This Section answers that question in the negative: Private civil causes of action were not seen as infringing on the constitutional domain of the executive branch. We came to this conclusion by canvassing the relevant sources, from background understandings in the English and colonial legal systems to early state and federal lawmaking. We focus mostly on the law on the books (of which there is more evidence, and which can reflect codified shared societal understandings) but also consider the law in action. Standing alone, this history does not provide a mechanical test for defining the separation of powers. But it does show that private rights of action for reasons of public policy were not perceived as inherently executive. The Americans who framed and ratified the Constitution saw no conflict between widespread private enforcement and the separation of powers in the federal Constitution.

Conversely, the Article II critics ignore key elements of Founding Era legal practice and seriously misunderstand Founding Era legal theory. They overstate the discretionary powers of British and American executive officers and overlook the extensive use of private enforcement by Parliament, colonial assemblies, state legislatures, and early Congresses. In fields that we now regard as “public law,” like tax enforcement and economic regulation, statutory private enforcement was the rule rather than the exception in the Founding Era.

A.   England: Active Plaintiffs, Passive King, and Nolle Prosequi

The Article II challengers make several mistakes in their interpretation of English legal history to support their originalist arguments against private enforcement. Jurists like Judge Newsom and Justice Thomas are right to suggest that the separation of powers in British constitutional law influenced the Framers. But they misunderstand the robust tradition of private enforcement that the Framers inherited from the English legal system. In fact, the Crown possessed remarkably little enforcement discretion over the private enforcement of regulatory law.

Drawing primarily on present-day understandings of the role of a prosecutor, Article II critics tend to identify three core elements of enforcement power: discretion over whether to bring an action; authority to control or terminate a pending case; and the option to pardon or remit a penalty after conviction.[119] With respect to criminal offenses—the quintessential public wrong—the King and his officers possessed these powers only in part. Most importantly, the Crown exercised (almost) no control through these three core elements in the suits most relevant to modern debates about private enforcement: private actions to collect civil damages or other penalties authorized by statute.

This misunderstanding of the historical background derives some plausibility from a superficial reading of William Blackstone’s influential Commentaries on the Laws of England. Modern critics of private enforcement often cite the distinction Blackstone drew between “private” and “public wrongs” in the late 1760s. Drawing on earlier treatments of the separation of powers by Cesare Beccaria and Montesquieu,[120] Blackstone wrote that the King was “the proper person to prosecute for all public offences and breaches of the peace”[121] and that “the administration of common justice [must] be in some degree separated from both legislative and also from the executive power.”[122] Joining the power of the executive and judiciary would soon “over-balance” and usurp the prerogatives of the legislature.[123] At that high level of generality, the Commentaries seem to make a vigorous case for the Executive’s exclusive power to redress public wrongs.

But a closer reading reveals that Blackstone’s theory of “public wrongs” did not preclude private enforcement. Far from it: The Commentaries themselves (and the contemporary legal authorities Blackstone relied on) reveal that the Crown’s executive power to redress public wrongs was fully compatible with (and even presupposed) a system of near total private enforcement.[124]

First, the Crown had almost no discretion over the decision to initiate criminal actions.[125] When Blackstone wrote that the King “is always present in all his courts, though he cannot personally distribute justice,” Blackstone was not suggesting that local executive officials acted in the King’s stead by deciding when to prosecute.[126] There were no local public prosecutors in Blackstone’s England.[127] In fact, England had no officers comparable to American district attorneys until 1879.[128] In nearly every case, a “private prosecutor”—usually, though not necessarily, the crime victim—would hire an attorney at his own expense to pursue the claim in the name of the King.[129] The only meaningful exception was the Attorney General’s power to file a criminal information for “public misdemeanors” ex officio (that is, by the authority of his office).[130] This category excluded all felony prosecutions, and in practice encompassed only a narrow range of political offenses that might “disturb or endanger [the King’s] government”—for example, libels on government, breaches of quarantine, bribery, or obstructing a revenue officer.[131] All other criminal actions—by indictment, presentment, information, and appeal of felony—left private actors with the choice of whether to initiate a case.[132]

Second, even after a private party brought suit on behalf of the public, the Crown had only limited authority to step in—and no authority over the types of private regulatory suits most analogous to modern private rights of action. Executive officers did have some power to intervene in criminal cases that private parties brought in the King’s name. The Attorney General could enter a writ of nolle prosequi (“unwilling to prosecute”) to stay a criminal proceeding, even one initiated by a private prosecutor.[133] And, of course, the King could pardon convicted criminals and commute punishments—a regular occurrence in the English justice system, where so many property offenses carried a death sentence.[134] But both the nolle prosequi and the pardon were inapplicable against the Founding Era suits most directly relevant to modern private enforcement: actions on “penal statutes.”

To twenty-first-century ears, the term “penal statute” is a synonym for a “criminal law.” But in the eighteenth century, it had a distinct meaning. Most Founding Era crimes were common law offenses, defined by judicial precedent rather than statute.[135] By contrast, “penal statutes” were positive laws that assessed a penalty;[136] as Blackstone defined them, “such acts of parliament whereby a forfeiture is inflicted for transgressing the provisions therein enacted.”[137] The penalty could be payable solely to the King, or to “the party aggrieved,” but the category of “penal statutes” covered a broader range of suits authorized by the legislature, including (1) suits by common informers for a fixed penalty, (2) suits by aggrieved parties for damages, (3) suits brought solely in the plaintiff’s name, and (4) suits in which the plaintiff shared the recovery with the sovereign. Actions on penal statutes could be brought by civil or criminal process,[138] but Founding Era English jurists distinguished them from true “criminal proceedings.”[139] While some penal statutes simply attached fines to “particular crimes and misdemeanors,” the “greatest part are mala prohibita, or such as derive their guilt merely from their prohibition by the laws of the land.”[140] In other words, they were regulatory, touching “mere matters of police and public convenience.”[141] These actions spanned an “extraordinarily wide range of offenses,” from matters directly affecting the public fisc (like customs duties) to regulations of purely private agreements (like usurious loans, or apprenticeships) to vice legislation (like bans on Sunday amusements).[142]

The Crown was similarly limited in its ability to terminate actions under penal statutes. Even though penal statutes sought to achieve public regulatory ends, eighteenth-century jurists understood the statutory awards they conferred as a kind of private property. Accordingly, as early as Stretton and Taylor’s Case in 1588, the common law courts determined that the Attorney General could only enter a nolle prosequi for the Crown’s portion of a qui tam action.[143] That rule remained in force throughout the eighteenth century,[144] and Stretton was good law in England as late as 1861.[145] Similarly, the Attorney General could not interfere in an action brought for compensatory damages, whether the injured party sued under common law or penal statute.

Just as the Crown was limited in the first of the two of three core elements—the decision to initiate and ability to terminate—in penal cases, the same conceptual limitations applied to the post-conviction power of pardon. If no private informer brought an action on a penal statute, the King was free to pardon the defendant’s conduct and block any future claims.[146] But after the suit commenced, the King could not “remit any thing but his own part of the penalty.”[147] By commencing suit, the informer “made the popular action his own private action, and it is not in the power of the crown, or of any thing but parliament, to release the informer’s interest.”[148]

Penal statutes pose an obvious problem for Article II challengers: They are the archetypal example of private litigants enforcing the law on behalf of the public. As the English political economist and statesman Charles Davenant put it in 1699, “Law-givers have many times fortify’d their Laws with Penalties wherein Private Persons may have a Profit, thereby to stir up the People to put the Laws in Execution.”[149] Even though claimants under a penal statute exercised a kind of executive power, the Crown’s discretionary controls over public law litigation—the nolle prosequi and the pardon—did not apply to them. In that sense, “actions on statutes”[150] clearly anticipated modern statutory rights of action. Their acceptance in the Founding Era suggests that legislatively authorized private enforcement did not infringe on the “executive Power” as Blackstone and other English authorities understood it.

In fact, the Article II critics of private enforcement arguably seek to give the executive authority that the King of England emphatically lacked: the “Power of Dispensing with and Suspending of Lawes and the Execution of Lawes without Consent of Parlyament.”[151] The Article II Challenge suggests that the Executive must have the power to override or control legislation that permits private parties to enforce public law. In practice, that principle would amount to a judicial power to reject the claims of private litigants who “execute” the law by pursuing statutory causes of action. Such an account of executive power bears a striking resemblance to the royal prerogative of dispensing—that is, “the power to allow exceptions to the law, to permit what otherwise would be illegal, to grant a subject license to act as if the law dispensed did not exist.”[152] In 1689, the English Bill of Rights stripped this power from the King and, by extension, from judges who might seek to assert it on the Crown’s behalf.[153] For example, in the 1709 case of Bruse v. Harcourt,[154] the Court of the Exchequer recognized the implications of the Bill of Rights for private enforcement. There, an informer brought an action for an illegal importation of French wine, in violation of a parliamentary embargo.[155] Awkwardly, it turned out that the wine had been purchased “by the Queen’s order, with her money.”[156] But the Crown could not simply “dispense” with an inconvenient private prosecution. The Queen had to defend herself on grounds of statutory construction, like any other litigant.[157]

It would be very surprising if the Framers understood the English tradition of “executive Power” in the way that Judge Newsom and others suggest. The King’s control over criminal proceedings was largely nominal, and the English executive had even less control of actions on penal statutes. Blackstone saw no contradiction between the British constitution’s vaunted separation of powers and the practical reality that most English laws—from crimes to regulatory statutes to private disputes—were enforced at the initiative of private litigants. Given the strong association of the dispensing power with the “heavy and insupportable yoke of arbitrary power,”[158] it would have actually been a striking departure from English tradition if Article II’s Executive Vesting or Take Care Clauses imparted on the President a free-floating authority to annul private suits (either for damages or monetary penalties) that had been duly authorized by statute.

In short, both criminal and civil enforcement were dominated by private enforcers who were barely overseen by the Crown. The King, to be sure, could intervene in criminal cases that private parties brought in the King’s name through the nolle prosequi or a subsequent pardon. But these mechanisms could not prevent a private plaintiff from collecting a monetary penalty created by statute to redress a public wrong. The King, in other words, lacked prosecutorial discretion over private enforcers of most regulatory law.

B.   Importation to the Colonies

Legal practice in early America—both before and after Independence—evinced a similar understanding of private enforcement, at least with regard to civil and regulatory matters: Legislatures could authorize private enforcement of regulatory statutes without affront to the executive power of governors. Governors could not control those claims via nolle prosequi, pardons, or apparently in any other way.

Private enforcement loomed even larger in the colonies than in Britain, simply because Americans were subject to multiple “layers” of regulatory statutes. First, there were the numerous “actions on statutes” that the colonists knew from England (and which they could read about in Coke, Hawkins, and Blackstone). Colonial assemblies frequently reenacted English penal statutes, and it appears that many colonists brought claims under English statutes even when they had not been specifically reenacted.[159] Then came Acts of Parliament that specifically applied to the colonies, such as the Navigation Acts.[160] All of these laws were enforced, primarily, by qui tam or informer provisions. Finally, the colonial assemblies themselves (and the state legislatures that succeeded them) passed reams of statutes that relied on private enforcement. Legal historians have long recognized the informer’s action as a key part of the “colonial heritage” that remained a regulatory tool for both state and federal government throughout the nineteenth century.[161] And informer’s actions have been discussed at length in the context of Article III standing[162] and modern qui tam statutes.[163] But the prevalence and variety of homegrown private enforcement in early American lawmaking—and its significance for the separation of powers—have been largely overlooked.

Article II challengers, including Judge Mizelle, discount the interpretative value of colonial and state practice on the grounds that these legislatures were not constrained by the same separation of powers framework that the Constitution eventually adopted. That critique largely misses the point. The delegates of the Constitutional Convention, almost without exception, gained their legislative experience in colonial and state assemblies.[164] And most state constitutions enunciated the separation of powers in “emphatical and . . . unqualified terms,” as James Madison observed in The Federalist No. 47.[165]

Because of its power and influence in the eighteenth century, Massachusetts provides an especially revealing case study. In its first post-Independence constitution, the state proclaimed the separation of powers provision in terms even more explicit than those later adopted at the federal convention: “[T]he legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them.”[166] Justice Scalia, a trenchant defender of executive power, thought the federal Constitution simply captured the Massachusetts principle with more “economy of expression.”[167] Accordingly, legal practice in Founding Era Massachusetts offers a reasonable proxy for the background understandings of executive power with which delegates and the ratifying public approached the federal Constitution.

When Massachusetts obtained a new royal charter in 1692, the reorganized provincial government immediately devised a new court system and enacted statutes empowering private litigants to seek monetary penalties (and sometimes compensatory damages) by “bill, plaint, or information.”[168] The legislature never looked back: The Assembly continued to create private rights of action, in similar terms,[169] well into the nineteenth century. Approximately 10 percent of all public acts passed in Massachusetts between 1690 and 1820 expressly relied on private litigants for enforcement.[170] That somewhat understates the prevalence of private enforcement because some statutes created multiple causes of action.[171]

Those private actions enforced public policy in nearly every domain of legislative activity: duties on luxury goods;[172] restraints on roving livestock;[173] fishing and hunting regulations;[174] limits on dirty industries like tanning, butchering, and smithing;[175] quarantine measures for people and livestock;[176] prohibitions on usury and price gouging;[177] qualifications for the skilled trades;[178] standards for weights and measures;[179] ship building;[180] bread baking;[181] fish curing;[182] meat packing;[183] and more. These causes of action permitted uninjured, third-party informers to sue and recover a portion of a set penalty, with the remainder of the penalty usually going to “the poor of the town” where the offense occurred or to the provincial government. Some statutes also operated in a way that provided additional compensation for injured parties, either by expressly authorizing separate awards of “damages” to the aggrieved or imposing per-violation penalties that amounted to damages-multipliers.[184] These private suits—obviously calculated to achieve public regulatory ends—defy the hard and fast distinction between public and private rights proposed by some Article II critics of private enforcement.

Laws regulating the commons, a quintessential public right, typify this blend of public and private remedies. In 1693, the Assembly passed “An Act For Regulating Of Fences, Cattle, &c.” for “the better preventing of damage in corn-fields, and other improved and common lands, by horses, neat cattle, sheep, or swine, going at large.”[185] The Act established limits on the number of “horse-beasts” that townspeople could keep on the commons, and set penalties for overgrazing the commons—ten shillings for each unregistered horse. Half of any penalty collected was earmarked for town use, but the other half was reserved “to him or them that shall inform and sue for the same before any justice of the peace within the county.” Another provision required pig owners to yoke swine kept on the common and ring their noses, to keep them from squeezing through fences and rooting up crops. If any unyoked or unringed swine were found on the commons, their owners would “be liable to pay sixpence per head; and if found damage feasant [i.e., rooting up a private field] being unyoked or unringed, to pay twelvepence per head, over and above double damages to the party injured[.]”[186] Obviously, a private plaintiff who sued an overgrazer was vindicating a public right in commons property. Claims for harm caused by unyoked pigs—which combined compensatory damages with deterrent penalties—would have redressed injuries to both private property and a public resource.

While provincial court records are spotty, both government officials and private citizens frequently brought these types of statutory claims. In his career as a colonial lawyer, John Adams never identified a separation-of-powers issue even in his most ardent defense against such suits.[187] For example, Adams defended one client from a civil qui tam action brought according to a statute governing voting procedures at town meetings.[188] The law provided that any moderator who permitted an unqualified person to “give his voice” at the meeting would forfeit five pounds, half to the poor of the town, “and the other moiety to him or them that shall inform or sue for the same in any of his majesty’s courts of record.”[189] The plaintiff alleged that the presiding officer of the Rowley town meeting had counted the vote of a man who did not meet the property qualifications for the franchise. It is hard to imagine a more “public right” than one citizen’s interest in local electoral procedures. But Adams—constitutional savant and separation of powers obsessive—never seems to have identified this as a problem. In fact, despite the ubiquity of private claims, frequent complaints about the excesses of “common informers,”[190] and endemic constitutional debates, no one in Revolutionary Massachusetts seems to have made the argument pressed by the Article II critics—that private litigants who sought to enforce a public right were unconstitutionally exercising an “executive Power.”

C.   Reformation and Retention in the States

After the American Revolution and the ratification of the Constitution, the States retained their colonial qui tam laws and private rights of action and continued to enact new ones. Widespread efforts to reform “penal statutes” in the 1780s only demonstrated their continuing vitality in American law. Although many states adopted local prosecutors with discretionary powers far greater than those of the English Attorney General, early state case law shows that their enforcement discretion did not extend to private suits for civil remedies. Neither prosecutors nor judges claimed the power to set aside private statutory claims, even when they interfered with the government’s vindication of public rights. Again and again, the historical evidence is that no one believed that private enforcers exercised some exclusive executive power.

Return to Massachusetts, which illustrates the general trend. In 1779, the House of Representatives passed an omnibus reenactment of colonial laws (including dozens of qui tam laws) that had been found “useful and beneficial.”[191] The adoption of the 1780 constitution, with its express commitment to separation of powers, did not dampen the state’s enthusiasm for private enforcement. The new constitution provided that all colonial laws “shall still remain and be in full force, until altered or repealed by the Legislature; such parts only excepted as are repugnant to the rights and liberties contained in this Constitution.”[192] If executive officials had an exclusive power to redress public wrongs, then “popular statutes” would surely have been repugnant to the new constitutional order. But the old actions remained on the books,[193] and the legislature continued to deploy private enforcement schemes for public ends.

If anything, these new causes of action were even more ambitious and public-rights-oriented than their colonial predecessors. In 1783, for example, the legislature overhauled the state’s probate laws.[194] One striking new provision imposed a duty on every executor to present the will to the Register of Probate within thirty days of the testator’s death.[195] Any executor who failed to do so would forfeit five pounds “for each month he or she shall delay to present the will, to be recovered by action of debt, one moiety to the plaintiff [i.e., the informer], and the other moiety to the legatees.”[196]As the Supreme Judicial Court later noted, “The object of the statute was to compel a seasonable presentation of the will to the Probate Court.”[197] In other words, the statute permitted any informer to vindicate a public interest in reliable public records (and more obliquely, the private statutory rights of will beneficiaries). Any number of modern consumer protection statutes operate on the same theory—from the Fair Credit Reporting Act to the Telephone Consumer Protection Act.

Massachusetts also injected private enforcement into areas that would otherwise have been governed by public nuisance law. To support the contention that private parties should not be allowed to redress public wrongs of a civil or regulatory nature, Article II critics of private enforcement sometimes point to the Founding Era distinction between private nuisances and public nuisances. Public nuisances vexed or endangered the community at large, rather than inflicting an injury on some private person. Classic examples included obstructing public roads, keeping hogs in the city, or running “disorderly inns” or “bawdy houses.”[198] Because “the law gives no private remedy for anything but a private wrong,”[199] Blackstone noted that “no [civil] action lies for a public or common nuisance, but an indictment only: because, the damage being common to all the king’s subjects, no one can assign his particular proportion of it.”[200] Even at face value, this is dubious support for a constitutional principle limiting statutory private enforcement. Blackstone was merely restating the common law theory of nuisance, which (as he recognized) could be altered by statute.[201] And as discussed above, even a criminal indictment in the King’s name would be largely controlled by a private litigant in England.

In any case, American legislatures do not seem to have adopted Blackstone’s conceptual framework—they frequently encouraged private civil suits to redress public nuisances. As early as the 1690s, Massachusetts conceptualized nuisance as a problem that could be addressed with private statutory enforcement, rather than common law rules. For example, “An Act for Prevention of Common Nusances Arising By Slaughter-Houses, Still-Houses, &c., Tallow Chandlers, and Curriers” established zoning rules for dirty trades, with penalties for non-compliance enforceable by any common informer.[202]

Massachusetts legislators continued to reach for the same statutory tools after Independence. For example, in an age of timber buildings, keeping a large stockpile of gunpowder in a densely populated area was clearly a nuisance and a public wrong.[203] An 1809 law in Massachusetts empowered informers to police this offense against the public with private suits.[204] The Act required all residents of Cambridge to store gunpowder in “brass, copper, or tin canisters,” and forbade anyone from storing more than fifty pounds of gunpowder at a time. Violators would “forfeit and pay the full value” of the gunpowder, “one moiety to the use of the person who shall inform, complain, or sue for the same,” the other to the town of Cambridge.[205] The penalty could be recovered “by information or indictment” or by “action on the case” before any court of competent jurisdiction.[206]

Massachusetts was not an outlier. Every state in the union continued to pass penal statutes (with both private damages awards and qui tam provisions) in the first twenty-five years of independence.[207] A sweeping revision of Virginia’s statutes (proposed by Thomas Jefferson in 1776 and later taken up by James Madison) included twelve informer’s actions and many more statutory damages provisions.[208]

That is not to say that professional private litigants were popular.[209] Edward Coke famously called informers “viperous vermin,” and “common informer” had become a term of abuse by the eighteenth century.[210] Undoubtedly, penal statutes created perverse incentives for both extortion and collusion. As early as the reign of Queen Elizabeth, Parliament had imposed limitations on penal statutes to reduce the potential for such abuse.[211] Actions on statutes usually had to be brought within a year of the offense.[212] Informers also had to bring suit in the locality where the offense occurred, where judges would have more awareness of the plaintiff’s character and better access to the evidence.[213]

As American jurisdictions continued to create private rights of action after Independence, several states reenacted these longstanding restraints on penal statutes. One of Jefferson’s model bills—which James Madison passed in 1786—provided that collusive private prosecutions of a penal statute would not bar recovery by a subsequent good-faith plaintiff.[214] It also made any private prosecutor who settled or discontinued a qui tam action without leave of court liable for the whole penalty. In 1788, Massachusetts passed an “Act for the Ease of the Citizens Concerning Actions Upon Penal Statutes,” which imposed the familiar one-year statute of limitations, required the informer to bring his action in the county where the offense occurred, and permitted defendants to make a general denial of the informer’s factual allegations.[215] New York’s 1788 “Act to Redress Disorders by Common Informers and to Prevent Malicious Informations” imposed the same restrictions as Massachusetts and copied the Virginia anti-collusion provisions verbatim.[216] The thrust of these reforms was to make private enforcement more effective and less onerous by imposing legislative safeguards familiar from English history. They did not eliminate private claims or subject them to the control of executive officers.

However, early American legal culture diverged from English practice in one important respect. By the eve of the American Revolution, many of the colonies did have local public prosecutors.[217] Although private criminal prosecutions continued in most states, public prosecuting attorneys were charged with bringing indictments to the grand jury and supervising important criminal cases.[218]

The early move toward public prosecution in America might support a more expansive view of executive discretion over criminal law in the Founding Era.[219] But what about the broader power—claimed by supporters of the Article II Challenge—over private civil claims vindicating a public interest under a statute? If public prosecutors possessed such a power, they would likely have exercised it over private qui tam suits. As the reforms of the 1780s indicate, these claims frequently conflicted with (or even subverted) the government’s enforcement priorities. Evidence that American prosecutorial officials quashed private statutory claims would demonstrate a striking divergence from English practice and support the private rights-public rights interpretation of Article II.

But the evidence points in the opposite direction. American courts evidently retained that longstanding property-based view of informer’s actions, even post-ratification. In the 1806 case of State v. Matthews,[220] the South Carolina Constitutional Court explicitly reconciled the state’s post-ratification constitution with the traditional view of qui tam (albeit in dicta). There, a 1784 statute permitted any informer to recover a qui tam penalty against the operator of an unlicensed billiards table.[221] But, like its federal counterpart, Article II of South Carolina’s 1790 Constitution “invested” the governor with “the executive authority of this State.”[222] The state constitution even went a step further by declaring that “all prosecutions shall be carried on in the name and by the authority of the State of South Carolina.”[223]

Nonetheless, the court observed that informers were still permitted to recover “the penalty by suit at law, or by information in nature of a qui tam action.”[224] Unlike a criminal prosecution, which could only be carried on by the State, a qui tam action was “in truth but a civil remedy, to recover a particular sum, which the party from whom it is demanded, is bound by law to pay[.]”[225] In light of this property interest, “if the Attorney General enters a nolle prosequi, the informer may, notwithstanding, proceed for his part.”[226] (As detailed further below, the Washington administration appears to have adopted the same view.)

American courts also continued to apply the traditional rules of informer action preclusion, as the Massachusetts Supreme Court did in 1809 to a 1783 informer statute prohibiting usury.[227] There, a private relator sued to recover the penalty—potentially in a collusive suit encouraged by the defendant—but lost at trial.[228] The state’s Solicitor General then brought a new action “for the same offence, and to recover the same penalty.”[229] After carefully considering a bevy of English precedents, Chief Justice Theophilus Parsons held that the relator’s suit (provided it had been properly pled) precluded the state’s subsequent enforcement action.[230]

Parsons’s opinion is notable for two reasons. First, the Massachusetts Constitution of 1780 expressly prohibited the “legislative department” and the “judicial [department]” from exercising “executive powers.”[231] Nonetheless, the court found that the state could not supplant a private suit duly authorized by statute. “Perhaps the positive rules of law furnish [the usurer] this screen[,]” Justice Sedgwick noted in concurrence.[232] “If they do, it is for the legislature only to remedy the evil.”

Second, Parsons was a prominent defender of executive power. In 1778, he wrote the “Essex Result,” an influential report criticizing the failed Massachusetts constitution of 1778, “because the supreme executive officer [was] not vested with proper authority” and “a due independence [was] not kept up between the supreme legislative, judicial, and executive powers.”[233] He later defended the federal Constitution at the Massachusetts ratifying convention, and was even asked by his fellow delegates to “prepare an Address to the People, stating the principles of the said Constitution.”[234]

If anyone in the Founding Era had embraced Judge Mizelle’s maximalist and exclusive view of executive power, it would have been Parsons. But instead, he hewed to the longstanding consensus that informers and relators had considerable leeway to litigate their claims independently and bind the government—even over the policy objections of public prosecutors.

The constant use of private enforcement by state legislatures, coupled with cases like Matthews and Churchill, demonstrate that American jurists saw no separation of powers problem with private litigants bringing statutory claims to vindicate a public right. In short, like their English counterparts, American jurists embraced the property-right rationale for qui tam and declined to give executive officers control over litigating informers. That remained true even after states adopted public prosecutors and vested their executive officers with a constitutional duty to enforce the laws. This is strong evidence that the drafters and ratifiers of Article II would not have understood informers or relators as exercising “executive Power,” even when they brought claims vindicating some public interest.

D.   Post-Constitutional Debates and Article I

The theory and practice of the early federal government reveal broad-strokes agreement with the English, colonial, and state background: Widespread private enforcement of public wrongs, through statutorily authorized suits, did not infringe on the constitutional powers of the Executive.

Article II challengers make two argumentative moves with the early federal evidence to reach the opposite conclusion: Private enforcement of public rights runs afoul of the original meaning of executive power. The first move concerns legal theory: Article II critics quote the Framers’ emphatic endorsements of the separation of powers and then quote American jurists who assigned the enforcement of “public rights” (in contrast to the rights of private persons) to the executive branch. From these abstract principles, the Article II critics deduce that enforcement discretion is an exclusively executive power and that this discretion extends beyond criminal law to regulatory or civil matters that concern the public. The second move concerns legal practice: The Article II critics minimize the significance of private enforcement in early federal law generally and suggest that qui tam laws were an “idiosyncratic exception” to discount the historical evidence of private enforcement as a medieval holdover. But in their analysis of both theory and practice, the Article II challengers rely on anachronistic assumptions.

First, the Article II critics fundamentally misapprehend the way early American jurisprudence conceptualized private enforcement. The judicial opinions endorsing the public rights view of Article II follow a predictable sequence.[235] After the inevitable citation to Blackstone (to show that redressing public wrongs is an executive power) comes a nod to The Federalist No. 47 (to show that such a power must be kept away from the other branches): “The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.” Then comes Justice Joseph Story’s dicta on Article II in Martin v. Hunter’s Lessee, for the implication that this power may not be delegated to private parties:

The second article declares that ‘the executive power shall be vested in a president of the United States of America.’ Could congress vest it in any other person; or, is it to await their good pleasure, whether it is to vest at all? It is apparent that such a construction, in either case, would be utterly inadmissible.[236]

The speech of future-Justice John Marshall to the House of Representatives in 1800 completes the loop: “A private suit instituted by an individual, asserting his claim to property, can only be controlled by that individual. . . . But a public prosecution carried on in the name of the United States, can without impropriety be dismissed at the will of the government.”[237] Top this off with the irresistible dictum of Marbury v. Madison that “the province of the Court is solely to decide on the rights of individuals,”[238] and a constitutional principle emerges. When Congress authorizes private suits in furtherance of some public goal—economic regulation, protection of civil rights, etc.—it might be giving litigants “the sort of proactive enforcement discretion property reserved to the Executive Branch.”[239]

But that early federal evidence appears in a radically different light when viewed in the broader context of Founding Era private enforcement. As discussed above, statutory plaintiffs (including common informers) were widely understood to possess an “imperfect” property interest in their claims. As Greg Ablavsky has recently shown, in the parlance of the Early Republic, an imperfect or inchoate right was nonetheless considered vested, even though title was not yet absolute.[240] In Blackstone’s evocative phrase, penalties given by the legislature to “any person that will sue for the same” are “placed as it were in a state of nature . . . open therefore to the first occupant, who declares his intention to possess them, by obtaining judgement to recover them.”[241] As described above, the same conception governed colonial and state practice—as Justice Story and Justice Marshall knew well. Justice Story helped compile the first complete edition of the colonial session laws of Massachusetts, which included dozens of informer’s actions.[242]

Chief Justice Marshall’s articulation of the public/private rights distinction was also fully compatible with a world of ubiquitous private enforcement. As he noted in Adams v. Woods, “almost every fine or forfeiture under a penal statute, may be recovered by an action of debt as well as by information.”[243] Since at least the time of Hawkins, an action of debt was considered the default civil process for collecting a statutory penalty—a practice followed in colonial America and the Early Republic.[244] The reason is simply that the claimant had a private property interest in a penalty (or damages) conferred by the statute. So when Marshall referred (in his House speech) to private suits “asserting a claim for property,” he was not referring only to legal claims for some preexisting property right, like a debt or an interest in land. Statutes that created new rights out of whole cloth—e.g., damages unavailable at common law or informer’s penalties—could also give rise to what Marbury called the “rights of individuals.” Woods shows that this was the case even for qui tam actions brought under criminal process, to redress a public wrong. Marshall’s House Speech was simply stating the conventional wisdom when he said that the Executive could “give no direction” regarding such cases. In other words, private statutory claims for novel rights of action could be litigated in federal courts at the discretion of private parties, without offending the Article II power over “public prosecutions.”

Broader articulations of the separation of powers—in the Federalist Papers and by other Founding Fathers—are wholly consistent with this understanding. While the Federalist Papers argued for an executive with the authority to enforce the laws and a judiciary that was institutionally independent from the Executive,[245] they clearly presupposed that private litigants would continue to play the decisive role in enforcing civil regulatory law.

Puzzlingly, Judge Newsom cites The Federalist No. 21 for the proposition that the President’s executive discretion to enforce federal law extends to civil remedies.[246] But that essay is a criticism of the Articles of Confederation, not an exposition of the powers of the President. Implicitly, it makes the opposite point—arguing for a stronger federal government that can “raise its own revenues in its own way.” The Congress created by the proposed Constitution would do this by laying duties on “articles of consumption.” Contemporaries would have recognized that these duties would be enforced by qui tam laws. As Hamilton wrote in The Federalist No. 15, an indispensable power of Congress was the authority to ensure that laws had a “penalty annexed to disobedience,” which (in matters of taxation, as well as public policy) would have invariably been done by authorizing private suits.[247] In fact, just a few months after writing the Federalist Papers, Hamilton himself drafted a tax law enforceable by “any informer” as a Representative in the New York State Assembly.[248] He presumably regarded private suits as simply one of the “necessary and proper” tools available to Congress for implementing the enumerated powers of Article I.

The second argumentative move that the Article II critics make concerns legal practice. The Article II critics are aware of qui tam suits but regard them as “an idiosyncratic exception.”[249] They often draw on Article III standing scholarship, where the historic ability of non-injured parties to bring statutory suits has long been debated. For example, Caleb Nelson and Anne Woolhandler have argued that while informer suits do challenge the principle of executive control over suits on behalf of the public, “qui tam is at best an anomaly,” and “the existence of one historically grounded exception to a general principle of constitutional law does not require repudiation of the entire principle[.]”[250]

That response is inadequate for two reasons. First, as discussed above, private enforcement in the Founding Era was not just qui tam; informer’s actions were only one of many remedies employed by “penal statutes,” which also authorized novel causes of action for damages. Second, while qui tam enforcement might seem peculiar or exotic today, there was nothing anomalous about it in the Founding Era. For Blackstone, penal statutes were not an “idiosyncratic exception,” but a vast body of encumbrances and obligations that would be too “tedious” to enumerate—for that he directed his readers to several other “laborious compilers.”[251] As discussed above, American colonial and state governments used qui tam extensively, and “popular statutes” remained just as important for the fledgling federal government. Between 1789 and 1820, Congress deployed private enforcement—mostly informer’s actions—to implement nearly every one of its constitutionally enumerated powers: to make war; raise and support a military; grant copyrights and patents; regulate immigration; establish post offices; lay and collect taxes; coin money; and regulate commerce between the states and with Indian tribes.[252] While it is difficult to assess how much qui tam litigation actually occurred, a substantial body of federal law developed regarding the property rights of informers in their private claims.

The nature of the Executive’s control over these actions soon became a practical question for Hamilton, when he became the first Treasury Secretary of the United States. Samuel Dodge, a customs inspector in New York, violated a provision of the 1790 customs act by permitting a vessel to unload several hogsheads of molasses in the dark.[253] After being indicted by an informer suing in the name of the United States, Dodge appealed to George Washington for a pardon. His petition was compelling. Even the grand jury had found that Dodge had no intent to defraud the treasury, and he “maintained that he had been entirely ignorant of the regulation forbidding unlading after seven o’clock in the evening, which had gone into effect only a few days before the incident.”[254] The sticking point, however, was that the Act awarded half of the $400 fine to the United States and divided the other half between any private informer and local treasury officials.[255]

Washington requested Hamilton’s advice, and Hamilton promptly asked Richard Harrison, a lawyer and the Auditor of the Treasury Department, for his take on how the distribution of the penalty among the United States, a private person, and several government officers would impact the pardon power.[256] While acknowledging the difficulty of these “untried points,” Harrison gave a clear answer the following month: Washington could remit only the United States’ portion of the fine, and the other criminal punishments in the act (particularly a ban on federal officeholding).[257] With regard to the portions of the penalty awarded to private individuals, the pardon would be a “mere nullity.” Harrison, however, saw no “objection to making the pardon conditional, ‘provided the offender satisfy the officers &c. for the one half of the fine or penalty & pay the expences of prosecution.’” Washington ultimately pardoned Dodge—but with the caveat suggested by Harrison.[258] In sum, Hamilton and Harrison concluded that the Executive had no power to displace a private claim, even when it was brought solely in the name of the United States. The informer’s claim was an egregious impingement on prosecutorial discretion: Dodge’s violation was purely technical, and a public prosecutor would never have proceeded against him. Nevertheless, in Harrison’s view, the only remedy lay with Congress. In 1825 the Supreme Court seems to have taken a similar view in United States v. Morris, noting that the authority of the Secretary to remit a fine or forfeiture “must depend on the construction to be given to the act under which the power was exercised.”[259]

In sum, the early federal evidence contradicts the Article II critics. Theoretical expositions of the separation of powers—even those that made a clear distinction between public and private rights—presupposed that Congress would enforce its laws with “penalties” largely collected by private litigants. Rather than an “idiosyncratic exception,” private enforcement in the name of the public was a pillar of the new federal government’s regulatory ambitions. Whatever discretion the Executive possessed over private claimants was conferred by statute or limited to blatantly criminal punishments that did not affect the statutory rights of the private plaintiff.

*          *         *

This historical evidence answers three key questions. First, under preratification and Founding Era practice, did legislatures empower private plaintiffs to sue for public wrongs? Yes. Second, did Founding Era contemporaries perceive penal statutes and private enforcers as infringing on executive power? No. And third, does the Constitution grant presidents exclusive control over civil claims on behalf of the United States? It does not. The Article II Challenge, then, is directly contradicted by pre- and post-ratification and Founding Era practice.

IV. Modern Doctrines of Executive Power

Parts II and III demonstrated that private enforcement of regulatory laws in the Founding Era was widespread, undermining the claim that delegating enforcement power to private parties violates Article II. The historical record shows that legislatures routinely relied on private suits, even for matters we would now classify as public rights and did so without triggering separation-of-powers concerns. Building on these historical insights, Part IV now turns to contemporary legal doctrines that touch on executive control over private enforcement. As we show, modern doctrine largely reflects—albeit in fragmented form—the same baseline assumptions that shaped Founding Era practice. Meting out non-monetary criminal punishments may be the Executive’s special province (then limited via nolle prosequi and today via exclusive government prosecution), but empowering private enforcers to bring civil claims (even those that amount to penalties) is not, in itself, an incursion on executive power. While courts and scholars now frame these questions through the lenses of standing, nondelegation, and state-action doctrines, the deeper tension between private and public enforcement powers has striking continuity with the historical themes in Part III.[260]

We lay out, in necessarily broad strokes, five doctrinal areas related to executive power that address the core concerns about executive discretion with which this Article is concerned: (1) doctrine concerning criminal prosecutorial power that assess Article II’s Appointments Clause, (2) cases concerning administrative civil enforcement power, (3) standing (which we have referenced above), (4) state-action doctrine, and (5) various formulations of nondelegation doctrines. The latter two doctrines concern executive power, but scholars rarely consider them when discussing private rights of action. On the whole, the Supreme Court’s case law on executive power assumes that functions over which the Executive has traditionally exercised exclusive control—such as law enforcement—are executive in nature. The Court has found that executive power entails at a minimum the power to prosecute criminal offenses, perform the obligations of executive agencies (through a vaguely defined civil enforcement power), appoint executive officials, and carry out the enumerated provisions of Article II, including the power to protect and engage in diplomacy and war.[261] And although less relevant to our core question, the Executive may also hold some residual power to ensure the laws are faithfully executed, including “to take ‘incidental’ measures that may be necessary to effectuate statutory commands.”[262] But in none of the modern doctrines described below—all of which grapple with issues of executive power over private enforcement—has the Court embraced anything like the Article II Challenge. Rejecting that challenge is therefore consistent with (and indeed, fills a critical gap in) modern understandings of executive power to control private enforcement actions. And they reveal, as described further below, that courts evaluate the propriety of a private delegation or other divestment of executive power along one of four key axes: authorization, right, remedy, and control.

Criminal Prosecutorial Power. The Supreme Court’s only clear holding in the executive power context is that criminal prosecutions belong to the Executive. In Morrison v. Olson, which concerned a challenge to the appointment of a special prosecutor in violation of Article II’s Appointments Clause, the Court implied that the “Take Care” duty encompasses at a minimum “the duty to ensure competence, observance of law, and prevention of misconduct.”[263] Its other Appointments Clause cases, too, indicate that criminal prosecutions are squarely executive. In United States v. Nixon, the Supreme Court flatly stated that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.”[264] This is consistent with Founding Era practice because, as documented in Part III, even eighteenth-century observers understood the need to draw a sharper line around purely criminal prosecutions—subject to nolle prosequi—while allowing more leeway in civil suits.

Civil Enforcement Power. While courts have recognized that the Executive has discretion over civil administrative enforcement, the boundaries of executive power—and its potential exclusivity—are not so clear in the civil arena.[265] The Court has recognized that Congress may not entirely usurp the President’s discretion to bring civil suits in the name of the United States by empowering non-executive officials to require the Executive to file civil enforcement lawsuits. In Heckler v. Chaney, the Court approved the FDA’s decision not to impose regulations on drugs used for lethal injections and concluded that the FDA’s “refusal to institute” regulatory proceedings “share[d] to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict—a decision which has long been regarded as the special province of the Executive Branch.”[266] And in Buckley v. Valeo, the Court explained that the Federal Election Commission exercised executive enforcement power because it exercised “discretionary power to seek judicial relief,” which overstepped the solely legislative function of Congress.[267] This, the Court explained, was because “[a] lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully executed.’”[268] That broad statement, however, turned on a specific statutory requirement that required the Attorney General to institute a civil action for relief where the Commission requested one.[269]

But the office only infringed upon the Take Care Clause where Congress gave it the power to command the Executive to file suit on behalf of the United States. Otherwise, the Court has held that Congress may reasonably limit executive power to, for example, decline civil prosecutions by requiring the Secretary of Labor to provide a reasoned basis for exercising that discretion when declining to prosecute alleged violations of labor law.[270]

Those cases reveal the Court’s understanding that the Executive must retain control over lawsuits brought to enforce a statutory scheme, such that Congress may not vest in officials who sit outside the Executive’s control the power to mandate that the Executive file a lawsuit or otherwise act to enforce the regime in a particular way (as in Heckler or Buckley).[271] But the Court has always recognized that private parties can bring regulatory lawsuits of their own, even in the form of environmental citizen suits.[272]

Standing. The Court’s standing cases have invoked the Take Care Clause as a justification for tightening standing requirements in civil cases. These cases recognize an Article II concern but address it through the standing-focused injury and remedy inquiries.[273] Some of that standing doctrine loosely invokes a historical claim. As discussed above, the TransUnion majority made the specific, and mistaken, historical claim that “until the 20th century, Congress rarely created ‘citizen suit’-style causes of action for suits against private parties by private plaintiffs who had not suffered a concrete harm.”[274]

The Court’s majority opinion in Friends of the Earth, however, adds a third consideration to the mix. In responding to Justice Scalia’s separation-of-powers concern with the Clean Water Act’s provisions permitting private plaintiffs to exact penalties paid out to the government, the Court found comfort in the fact that “the Federal Government retain[ed] the power to foreclose a citizen suit by undertaking its own action,” and that “if the Executive Branch opposes a particular citizen suit, the statute allows the Administrator of the EPA to ‘intervene as a matter of right’ and bring the Government’s views to the attention of the court.”[275] The Court, in other words, found no separation-of-powers issue because Congress had designed the private right of action to give the Executive sufficient control over the litigation. This echoes the Founding Era practice, outlined in Part III, of using private plaintiffs to pursue ‘penal’ claims that advanced public policy without requiring an exclusive public prosecutor.

State Action. The Supreme Court has separately recognized a set of scenarios in which private actions sufficiently motivated by or intertwined with government action may be considered state action and therefore made subject to constitutional standards.[276] As the late Justice O’Connor explained in Tulsa Professional Collection Services v. Pope, the mere “[p]rivate use of state-sanctioned private remedies or procedures does not rise to the level of state action . . . . But when private parties make use of state procedures with the overt, significant assistance of state officials, state action may be found.”[277] In that case, a state probate court’s opening up of state probate proceedings triggered a state statute barring property claims, which a claimant challenged as violating their due process rights.[278] Thus, even though a private individual invoked the state statute, she “ma[de] use of state procedures with the overt, significant assistance of state officials” such that the state probate court engaged in state action (and could give rise to a due process violation) when it invoked the preclusive statute.[279]

There is only a narrow set of circumstances in which the Court has extended that logic to hold, in effect, that a private litigant can herself act as an arm of the state. Where the action in question is not adverse to the government,[280] a private litigant may in a narrow set of circumstances constitute a state actor.[281] And in some cases, she may engage in state action. In Edmonson, the Court applied state-action doctrine to hold that a private corporate litigant in a private tort case acted as a state actor when it engaged in racially discriminatory jury selection.[282] As Tulsa Professional’s author has observed, the Court’s “cases deciding when private action might be deemed that of the state have not been a model of consistency.”[283] But Edmonson teaches at least that private litigants can in a narrow set of circumstances wield implicit governmental authority. In such cases, then—i.e., cases in which a private individual uses the judiciary to violate another’s constitutionally protected due process rights—private individuals may encroach upon the Executive’s prerogative to wield that authority.

Nondelegation. Courts have also identified a related “due process rationale for striking down delegations of regulatory authority to private parties.”[284] The lead case in this category is Carter v. Carter Coal Co., which invalidated on Commerce Clause grounds but also described as an unconstitutional private delegation a private industry commission that would have regulated the coal-mining industry.[285] Carter Coal establishes what Alexander Volokh describes as a “mandatory-discretionary” line: When private individuals “force an alteration in the legal regime without any discretion remaining in government and without any protection against their personal biases,” they violate due process.[286] The test, then, is outcome-focused: It asks whether the effect of the private action is to tie the government’s hands at the risk of unchecked private bias. Under that line of cases, Volokh posits that because “[s]uing someone in court . . . has no coercive effect beyond forcing the opposing party to appear to answer your charges,” the doctrine does not reach rights of action that empower private individuals to bring civil suits that have the effect of depriving others of their rights, so long as the suits do not operate at the exclusion of parallel executive enforcement.[287] Justices Alito, Thomas, and Gorsuch have been eager to revive and clarify such a private nondelegation doctrine.[288]

*          *         *

These doctrines show that when evaluating whether an invocation of judicial power by a private litigant interferes with executive authority, courts consider (1) whether Congress has expressly authorized the private individual to sue (measured through the relationship that the delegation creates between Congress and the private individual), (2) the nature of the right or claim that the private actor brings into court, (3) the remedy that results, and (4) the level of control that the Executive retains over the reins to assert the underlying right and drive the course of the specific suit. All of this is consistent with Founding Era practice, which never treated private enforcement as an unconstitutional delegation of executive power—so long as such suits remained civil or quasi-civil in nature. A preview of these axes and their doctrinal sources follows, after which we describe each axis along with the scholarship that supports it.

Table 2: Doctrinal Considerations of Private Enforcement

Axis	Relevant Questions	Key Cases
The Authorization	●     Has Congress expressly authorized the private litigant to sue on behalf or as an agent of the United States? ●     Has Congress implicitly done so through indirect funding mechanisms?	●   Vermont Agency ●   Edmonson ●   Buckley
The Right	●      Does the right interfere with a parallel and traditional governmental function? ●      Does the right concern an interest—such as in public property—traditionally held exclusively by the government or political community? Is that right assignable at common law? ●      Does the right invoke a government-created right or benefit?	●   Morrison ●   Justice Thomas’s Dissents in TransUnion and Spokeo ●   Edmonson
The Remedy	●      Is the private plaintiff’s requested remedy punitive or otherwise designed to accrue to the public? ●      Does implementing the requested remedy require extensive state involvement? ●      Does the remedy extend beyond monetary to injunctive relief?	●   Morrison ●   Kokesh ●   Huntington ●   Tulsa Professional
Control	●      Can the Executive control the litigation? ●      Does the litigant remain accountable to the public and are there checks to prevent interest-group capture? ●      Has the Executive been excluded from vindicating that right in parallel?	●   Morrison ●   Amtrak ●   Vermont Agency; Ex rel. Polansky

The first, and most prominent, theme that emerges both from the history and doctrines is that private suits do not necessarily interfere with Article II unless they proceed with the express—and perhaps implicit—imprimatur of governmental authority. In other words, statutory provisions that give private parties the power to prosecute a claim on behalf of the government raise the most direct constitutional questions. The clearest examples are qui tam actions and statutes expressly vesting federal prosecutorial authority in legal officers who sit outside the purview of the executive branch, such as special prosecutors. When Congress authorizes individuals to sue as agents of the United States—as in qui tam claims—it gives them authority to act with the imprimatur of executive power. Viewed simplistically, this may be seen to encroach on the Executive’s prerogative to “take Care that the Laws be faithfully executed.”[289] Both case law and scholarship attach great weight to the statutory label of the private actor. A statute that delegates the authority to sue on behalf of the United States also vests the traditionally exclusive imprimatur of federal executive authority. The formal assignment of the right to sue to a private litigant, as one scholar has noted, is far from “merely cosmetic.”[290]

Yet the kinds of suits that can interfere with executive power constitute a very narrow class. As Part III shows, Founding Era legislators were accustomed to private suits serving public regulatory aims, which contradicts the idea that every form of enforcement must reside solely in the Executive. While some scholars and courts have read the Take Care Clause and the Vesting Clause to imply an exclusive presidential power over law enforcement writ large, the historical record suggests otherwise. Indeed, as scholars Andrew Kent, Jed Shugerman, and others have shown, “faithful execution” historically encompassed an official’s duty to follow the law without necessarily implying exclusivity.[291] Similarly, “vesting” was not understood as a strict boundary marker, especially in light of contrasts with Article I’s “all legislative powers” language.[292] Yet even under these more nuanced readings of Article II, there remains a minimal “core” of executive prosecutorial authority—particularly over criminal offenses—that helps define the line between permissible private enforcement and impermissible delegations of truly executive power. Our historical account in Part III likewise shows that the Founding generation understood this “core” to be narrower than modern critics of private enforcement have assumed.

Second, taken together, the doctrines also focus on the nature of the right being vindicated. Lawsuits that assert rights shared by the political community might be understood as within the Executive’s exclusive prerogative, while those that assert individually held rights (such as most civil rights) can be understood as properly brought by private individuals, even if their assertion of those privately held rights ultimately produces public benefits. Although the concepts are similar, this form of inquiry is distinct from whether a party has suffered individual injury for the purposes of determining her standing to sue. Take, for example, Laufer, the ADA tester case. Laufer may not have suffered an individual injury for standing purposes because she filed her lawsuit against a hotel she may not have had any intention to visit. But the underlying right she asserted—the right to be free from discrimination pursuant to the ADA—is best understood as an individually held, rather than a communal, right. Contrast this with a qui tam litigant who files a False Claims Act lawsuit against the hotel for its fraudulent use of accessibility-focused tax incentives. That litigant may have standing because he shares a monetary interest in the statutory remedy, but the right he asserts—to be free from fraud—belongs to the government or to the public.

Third, several other doctrines look to the punitive nature of the remedy sought when distinguishing public from private suits: Is it merely disgorging the wrongdoer of profits, compensating a private victim, or punishing the wrongdoing itself, much as a prosecution would? When a litigant seeks merely compensatory remedies, her lawsuit seeks to vindicate a private injury; but when her lawsuit requests punitive remedies, such as fines, that serve to punish the defendant but do not accrue to her personally, the lawsuit may serve to remedy a public harm within the Executive’s purview. And as the dispute in the horseracing case makes clear, a private party with the power to impose an injunctive remedy may be wielding traditional prosecutorial power of the kind mere requests for monetary relief do not trigger. As relevant to the Article III public-private rights doctrine, in interpreting punitive statutes, the Court has defined the term “penalty” as applying only when a punishment is imposed “for an infraction of a public law” and not one “for the purpose of redressing a private injury, even though the wrongful act be a public offense.”[293] Where the underlying violation for which an agency extracts a payment from the wrongdoer is “committed against the United States rather than an aggrieved individual”—its prosecution is public.[294]And when that kind of public sanction is “intended to deter, not to compensate,” it is a penalty.[295]

Finally, the doctrines discussed above point to several additional, process-level considerations that can inform judgments about whether a private right of action interferes with the Executive’s prerogative. These focus on who holds control over the litigation. The relevant questions include (1) whether the Executive maintains ultimate control over the litigation and its outcome, either through specific executive-control provisions (such as in the False Claims Act’s checks on qui tam actions) or through the mechanism by which the private litigant may be removed (perhaps in compliance with the Appointments Clause); (2) whether the litigant remains accountable to the public in the manner that the Executive might be, or if there are other checks in place to prevent interest-group capture over the right of action; and (3) whether the Executive may vindicate the underlying right in parallel to the private litigant.

The history and the various doctrines most relevant to the Article II Challenge, then, give rise to a flexible (and surprisingly consistent) framework for evaluating when, if ever, private enforcement goes too far. That framework is nuanced, and its contours lend no support to any blanket challenge to all manner of private enforcement.

V. Impermissible Private Enforcement

This Part builds on both the Founding Era history (Part III) and the contemporary doctrinal considerations (Part IV) to identify when, if ever, private enforcement truly implicates the President’s duty to “take Care that the Laws be faithfully executed.”[296] The history reveals that even in eighteenth-century England and America, private litigants routinely enforced regulatory statutes without triggering objections that they were “usurping” executive power—so long as the legislature did not grant them exclusively criminal or otherwise purely governmental functions. Reflecting these same boundaries, modern doctrine (as outlined in Part IV) suggests only a narrow zone of constitutional concern: schemes that (1) amount to a criminal prosecution or impose truly punitive sanctions, (2) expressly authorize private individuals to invoke an interest in government property, or (3) crowd the Executive out entirely from enforcing that same statute. As our review of cause-of-action statutes illustrates, the vast majority of private causes of action do not infringe on these narrow zones of constitutional concern. This Part weaves those historical and doctrinal threads together to propose a unifying framework for the constitutionality of private enforcement.

A.   Dismantling the Article II Challenge

History and doctrine support some narrow concerns about private enforcement and explain why these concerns are far different from the broad concerns that the Article II Challenge attempts to address.

While the concern that private litigants may interfere with prosecutorial discretion while proactively enforcing the law appears in the history, it has not been historically treated as a separation-of-powers concern. Executive officials in the Founding Era exercised only limited prosecutorial discretion over criminal actions, and they had essentially no control over private suits for monetary awards authorized by statute. In fact, the financial incentives provided by penal statutes created a well-known class of “common informers” who actively searched for violations that could give rise to successful suits. Informers were not a popular group in England or America.[297] But despite widespread distaste for informers, Founding Era jurists do not seem to have understood them as exercising executive power. Founding Era lawmakers viewed overenforcement by private litigants as a policy problem to be remedied through legislation, rather than an unconstitutional intrusion on executive power.

Doctrinally, the Court has expressed concern with infringement of the Executive’s prosecutorial discretion, but only in certain narrow cases. The concern motivates several areas of doctrine. First, the Court has referred to Article II concerns in its standing decisions regarding organizational plaintiffs—those well-resourced to fish for violations of law in areas where the Executive may be inclined to exercise more caution or enforcement discretion. The canonical case is Lujan: There, the Court expressed concern that the Endangered Species Act gave anyone the ability to police “agencies’ observance of a particular, statutorily prescribed procedure” for protecting species.[298] In the criminal and civil Article II cases, the concern about enforcement discretion is more explicit: The criminal prosecution cases, such as Nixon and Morrison, express reservations about allowing private individuals to prosecute without deferring to the Executive’s enforcement discretion.[299] But in civil enforcement cases, such as Buckley, the Court’s Article II concern has been limited to groups that make the Executive sue—not merely where they may sue on their own.[300]

The Article II Challenge’s concern, in contrast to the aforementioned historical and doctrinal concerns, is that private plaintiffs should not be able to sue over violations of “public rights,” such as “noncompliance with the law,” at all.[301] But this has minimal support in history and doctrine. It also assumes a clean public/private rights divide that falls apart when one considers public rights as held both by the political community and by private individuals within it. Indeed, a key critique of Judge Newsom’s conception is that he appears to understand the Article II Challenge as applying to those cases that would flunk the Article III standing test (in other words, by a somewhat circular reference to the existing judicial filter that he rejects) without proposing any coherent theory as to which cases or types of cases the Challenge would apply to. Nor could any such line be easily drawn (which is why we assess the Challenge as applied to all manner of statutes);[302] historically, as detailed in Part III, private rights of action have touched public rights of all kinds, including rights shared by the broader public community.

The one area in which courts and the legislature have imposed more guardrails is the qui tam action vindicating an injury to the public fisc (here, even Hamilton worked to find a workaround but was eventually forced to acknowledge that the Executive had no power to interfere with the private action directly). As for the doctrine, as we detail in Part IV above, both the nondelegation doctrine and the private rights doctrine consider whether the right asserted is best described as public in nature. But those doctrines look to whether the right interferes with a parallel government function, such as prison management, or concerns an interest held exclusively by the government, such as a right in public property. They do not consider “violations of law” more generally, including civil rights (which as we explain above, are held by individuals and may be enforced either individually or collectively).

The Article II Challenge also invokes an additional concern—remedies—that was less relevant in history (though does carry some relevance in modern doctrine). In the Founding Era, colonial assemblies and state legislatures frequently relied on private enforcement to protect public resources, like commons land and fisheries, and deter conduct harmful to the public at large, like pollution from tanneries and the fire risk posed by gunpowder stores. And all “popular statutes,” whether state or federal, afforded a remedy to any member of the public who could prove the violation in court. These remedies included injunctions that would halt the challenged conduct and fines that would be paid out in part to the public fisc. As a modern jurisprudential concern, however, the public versus private nature of the remedy rears its head across the cross-doctrinal areas that we have identified in case law touching on Article II. Both state-action doctrine and the Article III public-private rights doctrine consider the nature of the remedy that a party seeks in determining whether the private party is acting in a manner that displays incidents of, or encroaches on, executive authority.

B.   Three Narrow Zones of Encroachment

Our review of the landscape of private enforcement, the history of these actions, and the doctrinal concerns courts have articulated support at most a narrow zone in which private enforcement may infringe on Article II’s Take Care Clause: where the private civil enforcement action (1) approaches criminal enforcement—a distinction that mostly turns on remedy, (2) enforces a public property interest held exclusively by the government, or, potentially, (3) crowds the Executive out from enforcement. Beyond these narrow zones, Congress may allow private individuals to bring private rights of action, even for injunctive relief, without interfering with historical or doctrinal understandings of the Take Care Clause.

1.   Punitive, Quasi-Criminal Private Prosecutions

Historically and across numerous doctrinal areas, courts have treated criminal punishment as a distinctly executive function. Although private prosecution was the norm in the early colonies, by the Founding, several colonies had to turn to a public prosecution model,[303] and there is some historical evidence that the extraction of punitive remedies was identified as an executive prerogative by then—though as Peter Shane has pointed out, this may speak more to the authorization, and not the exclusive prosecutorial power, of prosecutors.[304]

Modern jurisprudence, too, considers criminal punishment as a unique, though not necessarily exclusive, province of the Executive. In cases across the doctrinal spectrum in which the Court has expressed concern about private involvement in civil litigation, the Court has emphasized the extraction of punitive remedies as a uniquely executive prerogative.[305] In both Nixon and Morrison, for example, the Court asserted that criminal prosecutions are squarely executive in nature and required private individuals engaging in such prosecutions to be held accountable to the Executive—in those cases, by requiring their appointment be consistent with the Appointments Clause.[306] Causes of action that extract a punitive public remedy, such as damages paid directly to the public fisc as punishment or injunctive actions that approach the power to jail, may be constitutionally suspect if the statute is designed with few practical limitations on the way in which a cause of action can be brought and procedures by which the Executive can exert some control over it. Yet this concern is not necessarily cross-doctrinal, as the Court’s comfort with and protection for state executive enforcement of federal criminal law undermines the argument that the Take Care Clause commands that the federal executive exclusively enforce federal law, including criminal law.[307]

Even so, there are strong normative reasons to recognize this limitation, the precise contours of which need to be fleshed out. Such a line, if drawn narrowly, might functionally separate punitive components of remedies for traditionally private tort-like suits from those that extract public benefits in the name of the people. It may also be consistent with the conclusions of scholars considering delegation in political legal theory that the power to delegate violence is uniquely problematic.[308]

2.   Suits to Enforce Government-Held Property Interests

Both history and doctrine support that, to the extent that the Executive has a sole prosecutorial prerogative in the civil context, such prerogative may include protecting the property of the United States. This is because, in those cases, the interest at stake is not shared diffusely by the public but is instead held entirely and concretely by the government. It is, in other words, an interest held by a singular and identifiable public entity, rather than an interest experienced by private individuals in the manner a Clean Air Act violation may be. Rights of action to vindicate that interest must, as qui tam provisions already do, subject the action to some form of executive oversight.[309]

Historically, the evidence is somewhat mixed. Early colonial America’s grazing and yoking laws enabled private citizens to police public commons with little to no restrictions.[310] And as the Dodge example illustrates, the Executive in early America could not prevent a private plaintiff from bringing a prosecution based on injury to the public fisc, but it could prohibit a private plaintiff from enforcing the portion of the damages meant to be paid out to the public fisc.[311] Hamilton’s concern in the Dodge case shows that at the Founding, concerns about private enforcement encroaching on executive power appeared only when a private litigant claimed to be vindicating a harm to the public fisc.

Doctrinally, this distinction could make sense of some discrepancies. It would resemble the flipside of Sarah Leitner’s solution and would, in line with Justice Thomas’s separate writings in TransUnion and Spokeo, treat injuries to property as limited to those who own an interest in that property: Just as an individual may not sue to vindicate an interest in another’s privately held property without the property owner’s authorization, so too she cannot sue to vindicate an interest in government property without specific authorization. The Penal Judgments Exception to the Full Faith and Credit Clause also views the executive interest in protecting government property as core to executive power.[312]

Qui tam provisions as they exist today may initially raise Article II concerns. However, on second look, they remain constitutional because they give the Executive sufficient supervision over the plaintiff. The False Claims Act, the classic and most invoked federal qui tam right of action, expressly authorizes private relators to sue on behalf of the government in order to recover for fraud on the government. In other words, the Act authorizes private suits to recover an injury to the public fisc.[313] And it is these qui tam actions that have come under the most doctrinal scrutiny, first in Vermont Agency, where they survived because of the statutory form of the delegation to the relator to sue directly on the government’s behalf, and then as the target of Justice Thomas’s dissents. Scholars, too, have treated qui tam actions with suspicion, carving them out as though they are separate from private enforcement. The main concern is that qui tam suits grant private litigants the authority to vindicate harm to the federal government’s property—in the False Claims Act, that property is the public fisc; in parts of the Indian Protection Act, it is Native land. Such provisions, then, touch on nearly every cross-doctrinal concern identified in Part IV.B: They (1) formally grant the litigant the authority to sue on behalf of the United States; (2) involve a claim to a concretely held public property interest, not to a publicly distributed interest in the manner a civil rights statute might; and (3) may obtain injunctive and punitive remedies. With that said, all of these concerns are alleviated because of the extensive manner in which the False Claims Act now permits the Executive to (4) control the private litigant.[314] At the end of the day, the FCA’s qui tam provision is easily constitutional, not just because of executive supervision, but also because of its extensive historical pedigree.

3.   Crowding Out the Executive

There is some support in the doctrine and history for a final Article II backstop: that Congress cannot crowd out the Executive from enforcing or otherwise influencing in some way the judicial interpretation of a statute in parallel to private litigants. The main historical support for the backstop is that the King, governors, and President could always pardon a penal statute violation before anyone filed a claim.[315] This gave the Executive a way to limit these claims. Still, this was likely an extremely narrow power because, as a practical matter, the Executive likely could not learn about violations of penal statutes until an informer filed a claim.

Likewise, the doctrine seems to support the existence of a backstop. Drawing on In re Neagle and other cases, Greenbaum once argued that the Take Care Clause “may include the power to initiate remedial litigation if the Executive believes it is necessary to enforce the law.”[316] This aligns with Grove’s argument that Article II “prohibits the delegation of the Executive Branch’s duty to see that federal law or an area of federal law is obeyed.”[317] Article II may therefore safeguard some role for the Executive to influence how federal law is obeyed, even if indirectly. That is why in Friends of the Earth, the Supreme Court initially worried that the Clean Water Act could unconstitutionally constrain the executive power. But the Court ultimately rejected the argument because “the Federal Government retain[ed] the power to foreclose a citizen suit by undertaking its own action,” and “if the Executive Branch opposes a particular citizen suit, the statute allows the Administrator of the EPA to ‘intervene as a matter of right’ and bring the Government’s views to the attention of the court.”[318] In other words, the Court recognized the potential Article II problem but rejected it because Congress had given the Executive sufficient control over the litigation.

A concern with retaining some way for the Executive to influence an area of federal law also finds support in the doctrinal axes identified above. As discussed above, the Court has worried about encroachment upon Article II when a statute (1) expressly authorizes private litigants to sue on behalf of the United States, (2) does so for the vindication of a publicly held interest, (3) imposes a punitive remedy paid out to the public, or (4) does not give the Executive sufficient control to shape the law.

There are two ways to conceptualize a crowding-out test:

The first, narrow version would limit Congress’ power to create exclusively private enforcement regimes. The Texas anti-abortion statute, S.B. 8, is a good example of such a regime, even if it is at the state level. In that statute, Texas not only empowered “any person” to sue abortion providers but also prohibited any state officials from enforcing the law.[319] It therefore simultaneously empowered private litigants to enforce a law while expressly excluding the Executive from doing so. Were Congress to simultaneously empower private plaintiffs in an area of public law and prohibit federal officials from both (a) exercising control over the private lawsuits (by pardon or dismissal) and (b) enforcing that same law in parallel, it would potentially violate Article II.[320] Of course, the distinction between complementing and replacing executive enforcement may in practice be more a distinction in degree than in kind.

The second, more robust version would obligate Congress to affirmatively give the Executive parallel enforcement power and the ability to influence private enforcement cases. Under a more expansive reading of Article II, whenever Congress creates a private enforcement regime, it would have to give the Executive some form of input into private lawsuits: the ability to intervene, the ability to “license” private parties before they file lawsuits, or some other method to effectively influence the enforcement of federal law. Congress could, for instance, ward off any Article II concerns by inserting a rider into each private right of action that gives the Executive some sort of power to step in with nolle prosequi authority.[321] Such a robust conception of Article II would ensure that the Executive retains an effective, pardon-power-like ability to restrict private rights of action that run amok. Given that the pardon power is constitutionally confined to criminal cases, however, the primary support for any such backstop would be a set of normative, policy-based concerns.

Even if there is some weak form of Article II backstop, both options are a far cry from what proponents of the Article II Challenge seek. Neither would limit Congress’ power to empower private plaintiffs. Rather, the crowding-out concern would limit Congress’ power to directly (and in some rare cases, indirectly) limit the Executive. This will rarely justify striking down a statutory regime because Congress typically gives the Executive specific enforcement power in nearly every private enforcement regime.

C.   Statutes Empowering the Executive

Given the potential backstop and concerns identified above, we used our dataset of all private rights of action to examine whether and when Congress has given the Executive some influence over private enforcement regimes. Our results demonstrate that Congress adeptly avoids any Article II concerns where it matters, often empowering agencies and the President alongside private enforcers, and at times explicitly giving the Executive a way to influence private enforcement cases. We might interpret this as congressional understanding of the constitutional limits of its own power—relevant for liquidation and other interpretive methodologies.

We specifically searched for clauses associated with a private right of action that give the Executive some power over private claims. We find that Congress often gives the Executive the ability to (a) prevent private actions by filing a lawsuit of its own, (b) displace an ongoing private lawsuit by filing another, (c) intervene in ongoing private claims, or (d) review proposed settlements.[322] Beyond these categories, Congress sometimes gives the Executive other ways to disempower private plaintiffs (e.g., qui tam), to require notice before a private claim is filed, or to require a “license” from an agency before a private lawsuit can proceed.[323] To illustrate:

Table 3: Sample PRAs Enabling Executive Control

Statute	Type of Executive Power	Statutory Text
Comprehensive Environmental Response, Compensation, and Liability Act	Prevention	No [private] action may be commenced . . . if the President has commenced and is diligently prosecuting an action under this chapter.
Fair Labor Standards Act	Displacement	The right provided by this subsection to bring an action by or on behalf of any employee, and the right of any employee to become a party plaintiff to any such action, shall terminate upon the filing of a complaint by the Secretary of Labor . . . .
Civil Rights of Institutionalized Persons Act	Intervention	Whenever an action has been commenced in any court of the United States . . . the Attorney General, for or in the name of the United States, may intervene in such action . . . .
Clean Water Act	Intervention, Notice, and Review of Settlements	In such action under this section, the Administrator, if not a party, may intervene as a matter of right. Whenever any action is brought under this section . . . the plaintiff shall serve a copy of the complaint on the Attorney General and the Administrator. No consent judgment shall be entered in an action in which the United States is not a party prior to 45 days following the receipt of a copy of the proposed consent judgment by the Attorney General and the Administrator.

Focusing only on intervention, Congress has demonstrated a keen interest in giving the Executive a way to influence private claims. Federal Rule of Civil Procedure 24 already allows for permissive intervention by a “Government Officer or Agency” in a broad array of cases.[324] But our dataset reveals that Congress knows how to limit private rights of action by empowering the Executive to intervene. We found that Congress has given the Executive the power to intervene (as of right or permissively) in more than forty clauses associated with a private right of action.[325]

Similarly, Congress often includes prevention clauses that disallow private claims if the Executive is already enforcing the statute. We found the clause “no civil action may be commenced [if the Attorney General or another executive official] has commenced and is diligently prosecuting a civil action” in fifteen statutes.[326] The table below provides examples:

Table 4: Sample PRAs Enabling Executive Preemption

Type of Executive Power	Number of Clauses	Example Statutes
Intervention	40	Common Carrier Regulations, Outer Continental Shelf Lands, Safety of Public Water Systems, Civil Rights and Public Accommodations, Fair Housing, Noise Control, Energy Efficiency, Air Pollution Prevention and Control, Powerplant and Industrial Fuel Use
Prevention	15	Safety of Public Water Systems; Noise Control; Solid Waste Disposal; Air Pollution Prevention and Control; Regulation of Ocean Thermal Energy Conversion Facilities and Plantships; Hazardous Substances Releases, Liability, Compensation; Deepwater Ports, Control of The Environmental Impacts of Surface Coal Mining; Regulation of Exploration and Commercial Recovery by United States Citizens; Control of Toxic Substances

Finally, Congress uses displacement and settlement review clauses less often. Nonetheless, we think these four types of clauses are merely the tip of the iceberg. As mentioned above, even though Congress adopted forty intervention clauses, Rule 24 permissive intervention covers hundreds of other private rights of action. And we did not quantify the myriad of other clauses that Congress uses to empower the Executive via public enforcement or licensing regimes.

This indicates that Congress has a sophisticated understanding of the relationship between private enforcement and executive power and appears to have carefully avoided the zones of encroachment that we identify. Notice, for instance, that in the most expansive regimes of private enforcement for public wrongs, such as the Clean Air Act and Clean Water Act, Congress included a combination of intervention, notice, and review of settlements. Or that in a powerful employment regime like the Fair Labor Standards Act, Congress included a displacement clause. As far as we can tell, Congress almost never creates exclusively private enforcement regimes. Along the same lines, nearly every private right of action that we identified extracts only private or non-punitive public remedies, and the few that enable private litigants to assert the government’s property interests—most prominently, the Federal Claims Act—contain provisions enabling executive control over the right of action.[327]

At the same time, our dataset does reveal a few novel statutory provisions that may pose an Article II problem. The Telecommunications Act, for example, contains a provision enabling certain broadcast stations to sue satellite carriers that broadcast content without authorization—a harm to the public. But as a condition for collecting statutory damages, the broadcaster must stipulate that the station will “donate the full amount in excess of $1,000 of any statutory damage award to the United States Treasury for public purposes.”[328] In other words, Congress has deputized broadcasters to collect statutory awards payable directly to the government as punishment for a civil violation. This potentially implicates our first zone of encroachment (the second zone remains untouched, as the injury here is to public broadcasting, not to any governmental property interest). This unique enforcement scheme may be unconstitutional pursuant to Article II. Little else is.

Conclusion

The Article II Challenge to private enforcement is not historically grounded. An extensive review of Founding Era practice provides no historical support for any separation-of-powers limitation on private rights of action, and doctrines addressing the subject do not identify any single attribute of private enforcement that marks it as a threat to Article II. Rather than an “idiosyncratic exception,” private enforcement for public harms, qui tam and otherwise, was a ubiquitous source of regulation in the colonial era and Early Republic. Whatever discretion the Executive possessed over private claimants was conferred by statute or limited to blatantly criminal punishments that did not affect the statutory rights of the private plaintiff.

This historical evidence answers three key questions. First, under preratification and Founding Era practice, did legislatures empower private plaintiffs to sue for public wrongs? Yes. Second, did Founding Era contemporaries perceive penal statutes and private enforcers as infringing on executive power? No. And third, does the Constitution grant presidents exclusive control over civil claims on behalf of the United States? No. The Article II Challenge, then, is directly contradicted by pre- and post-ratification and Founding Era practice.

While there is no historical or doctrinal support for a broad Article II challenge, there may well be a few discrete exceptions[329] for schemes that extract punitive remedies or claim injuries to government property interests without a mechanism for meaningful executive control over the underlying action. However, beyond that narrow sliver, private rights of action need not be placed under a microscope.

Defendants may of course turn to other constitutional arguments that this Article does not address, including arguments grounded in the Eighth Amendment and the Due Process Clause. But, more generally, the final backstop lies with Congress, which remains free to modify its causes of action and its incentives for pursuing them. For example, the ADA’s right of action at issue in Laufer provides only injunctive relief and attorney’s fees, but serial testers sometimes offer to settle immediately for cash.[330] This may resemble the illegal “compounding” of eighteenth-century informers.[331] The solution lies in statutory design: amending civil rights statutes to cap serial settlements by repeat litigants.

Appendices

To facilitate further research, the appendices to this Article have been published online, and the latest public version is available at https://tinyurl.com/43vhxedk.

Appendix A: Methodology for Finding Private Rights of Action

Data and Preprocessing:

• The U.S. Code is available here in an XML format. 

• Using the available tags in the data, we first split the Code into distinct subsections.[332] 

• This process yields 163,057 subsections.

Private Rights of Action:

• We use a two-step process to identify private rights. First, we use the keyword queries described below to identify subsections that potentially contain private rights. Second, we use GPT-3.5 to identify which of the filtered subsections do contain private rights. We used a two-step approach because keyword queries are cheap to apply but often return several categories of statutes that do not contain private rights. These include: statutes that explicitly deny a private right; statutes that only authorize the attorney general (or an agency) to bring claims; statutory text that discusses other procedural topics, like notice requirements, jurisdiction, or filing deadlines. GPT-3.5 can effectively identify private rights but is expensive to run—we are effectively charged for every single word that is passed to the model. So we would like to ensure that we are only running the model on the subsections that are the most difficult to classify.

• The first step of filtering produced 3,324 subsections to analyze. The queries we used were:

Table 5: Queries Used to Analyze Subsections

may sue can sue bring an action institute an action file an action commence an action bringing an action bring a civil action institute a civil action file a civil action commence a civil action bringing a civil action action may be action at law is liable may be liable shall be liable  private right of action private rights of action injunctive relief cause of action person aggrieved individual aggrieved aggrieved person aggrieved individual file suit bring suit brought by instituted by maintained by

• When applying GPT-3.5 to subsections, we only analyzed the 500-character window around where the query was detected. This is because some subsections can be very long, and GPT-3.5’s performance degrades as the length of the text to be classified gets longer. 

  • The specific version of GPT-3.5 we use is “gpt-3.5-turbo-1106.”

  • The prompt we use is provided below. This prompt+model combination scored an accuracy rate of 97 percent on the LegalBench private rights task.[333]

Table 6: Prompt Used to Assess Subsections

You will be given an excerpt of a statute. You must determine if the statute contains a “private right of action.” A statute contains a private right of action if it explicitly says that a private individual may file a lawsuit in court to recover damages or obtain injunctive relief. A statute does not contain a private right of action if it states the lawsuit may only be brought by the US government, a federal agency, or the attorney general. Statutes which only discuss administrative petitions, jurisdictional issues, or other subjects do not contain private rights. Excerpt: {$statute excerpt} Is there a private right of action? Answer Yes or No. Answer:

• The second step of GPT-3.5-based classification identifies 618 subsections as containing a private right.

Evaluation:

• In order to determine the large language model’s (LLM’s) accuracy rate, we conducted a manual review of the 618 clauses. Three law-trained reviewers specifically coded 139 of the 618 clauses and found that 86 contained a private right of action (a 61.8 percent accuracy rate). 

• Extrapolating the 61.8 percent accuracy rate to the full results, we estimate a total of 382 clauses. 

• To access the full list of all PRAs and other clauses we found, please access this document.

Topical Distribution:

• Next, we analyzed the topical distribution of private rights by examining how many private rights appear in each title and adjusting that number down based on the 61.8 percent accuracy rate we had identified earlier.

Table 7: Number of Private Rights in U.S. Code Titles

Title Number (Title Name)	Number of Private Rights Counted (Adjusted)
Title 15 (COMMERCE AND TRADE)	93 (57)
Title 42 (THE PUBLIC HEALTH AND WELFARE)	89 (55)
Title 49 (TRANSPORTATION)	53 (33)
Title 29 (LABOR)	34 (21)
Title 26 (INTERNAL REVENUE CODE)	25 (15)
Title 18 (CRIMES AND CRIMINAL PROCEDURE)	25 (15)
Title 17 (COPYRIGHTS)	25 (15)
Title 12 (BANKS AND BANKING)	23 (14)
Title 16 (CONSERVATION)	22 (14)
Title 7 (AGRICULTURE)	19 (12)
Title 28 (JUDICIARY AND JUDICIAL PROCEDURE)	18 (11)
Title 47 (TELECOMMUNICATIONS)	17 (10)
Title 46 (SHIPPING)	16 (10)
Title 33 (NAVIGATION AND NAVIGABLE WATERS)	15 (9)
Title 22 (FOREIGN RELATIONS AND INTERCOURSE)	12 (7)
Title 31 (MONEY AND FINANCE)	11 (7)
Title 21 (FOOD AND DRUGS)	10 (6)
Title 50 (WAR AND NATIONAL DEFENSE)	9 (6)
Title 19 (CUSTOMS DUTIES)	8 (5)
Title 5 (GOVERNMENT ORGANIZATION AND EMPLOYEES)	8 (5)
Title 43 (PUBLIC LANDS)	7 (4)
Title 25 (INDIANS)	7 (4)
Title 30 (MINERAL LANDS AND MINING)	7 (4)
Title 8 (ALIENS AND NATIONALITY)	6 (4)
Title 35 (PATENTS)	6 (4)
Title 2 (THE CONGRESS)	6 (4)
Title 40 (PUBLIC BUILDINGS, PROPERTY,   AND WORKS)	5 (3)
Title 38 (VETERANS’ BENEFITS)	5 (3)
Title 41 (PUBLIC CONTRACTS)	4 (2)
Title 39 (POSTAL SERVICE)	4 (2)
Title 20 (EDUCATION)	3 (2)
Title 28 (PARTIES)	3 (2)
Title 6 (DOMESTIC SECURITY)	3 (2)
Title 10 (ARMED FORCES)	3 (2)
Title 11 (BANKRUPTCY)	3 (2)
Title 52 (VOTING AND ELECTIONS)	2 (1)
Title 54 (NATIONAL PARK SERVICE AND RELATED PROGRAMS)	2 (1)
Title 34 (CRIME CONTROL AND LAW ENFORCEMENT)	2 (1)
Title 13 (CENSUS)	2 (1)
Title 48 (TERRITORIES AND INSULAR POSSESSIONS)	2 (1)
Title 45 (RAILROADS)	1 (1)
Title 36 (PATRIOTIC AND NATIONAL OBSERVANCES, CEREMONIES, AND ORGANIZATIONS)	1 (1)
Title 3 (THE PRESIDENT)	1 (1)

Multiple Damages:

• To count multiple damages provisions, we use a set of queries originally developed by Farhang, with some minor augmentations. These are: 

• [‘punitive’, ‘exemplary’, ‘double’, ‘two times’, ‘two fold’, ‘twofold’, ‘two-fold’, ‘2 times’, ‘twice /p amount’, ‘twice /p sum’, ‘equal /p amount’, ‘equal /p sum’, ‘triple’, ‘treble’, ‘three times’, ‘three fold’, ‘threefold’, ‘three-fold’, ‘3 times’]

• We deem that a private right has an associated multiple damages clause if both a multiple damages clause and a private rights clause appear in subsections located under the same subdivision.

  • When a title breaks down statutes into chapters (and not subchapters), this means that the two clauses must occur in the same chapter. E.g., https://www.law.cornell.edu/uscode/text/10/subtitle-A/part-II/chapter-49

  • When a title breaks down statutes into subchapters, this means that the two clauses must occur in the same subchapter. E.g., https://www.law.cornell.edu/uscode/text/12/chapter-2/subchapter-XIII

• We first searched for multiple damages clauses in the universe of 618 clauses (before the adjustment) and found 407 private rights as occurring near a fee-shifting clause (approximately 66 percent). 

• When we apply the 66 percent rate to the adjusted number of private rights (382), we arrive at a much lower number of 252 private rights occurring near a fee-shifting clause. We understand that stacking the different accuracy rates on top of each other produces a larger error rate, but the precise number of multiple damages clauses is not relevant to our analysis. This rough estimate is highly informative on its own.

Fee Shifting: 

• To count fee-shifting provisions, we use a set of queries originally developed by Farhang, with some minor augmentations. These are: 

  • [‘attorney /p fee’, ‘attorney /p cost’, ‘attorney /p expense’, ‘legal /p fee’, ‘legal /p cost’, ‘legal /p expense’, ‘litigation /p fee’, ‘litigation /p cost’, ‘litigation /p expense’]

• We deem that a private right has an associated fee-shifting clause if both a fee-shifting clause and a private rights clause appear in subsections located under the same subdivision.

  • When a title breaks down statutes into chapters (and not subchapters), this means that the two clauses must occur in the same chapter. E.g., https://www.law.cornell.edu/uscode/text/10/subtitle-A/part-II/chapter-49

  • When a title breaks down statutes into subchapters, this means that the two clauses must occur in the same subchapter. E.g., https://www.law.cornell.edu/uscode/text/12/chapter-2/subchapter-XIII

• We first searched for fee-shifting clauses in the universe of 618 clauses (before the adjustment) and found 383 private rights as occurring near a fee-shifting clause (approximately 62 percent). 

When we apply the 62 percent rate to the adjusted number of private rights (382), we arrive at a much lower number of 237 private rights occurring near a fee-shifting clause. We understand that stacking the different accuracy rates on top of each other produces a larger error rate, but the precise number of fee-shifting clauses is not relevant to our analysis. This rough estimate is highly informative on its own.

Appendix B: Typology of Private Enforcement

Table 8: Forms of Private Enforcement

Model	Investigator	Prosecutor	Examples
Public law enforcement	State	State	·         Criminal law[334]  ·         Antitrust enforcement actions
Private reporting regimes	Private citizens	State	·         Informal report-thy-neighbor regimes[335] ·         Whistleblower regimes ·         Moiety Acts
Outsourced investigatory regimes	Private entity contracted by the state	State	·         Bail bondsmen models ·         Criminal investigations conducted through third-party actors[336]
Parallel public enforcement regimes	State or Private citizens (though often must exhaust public remedies)	State or Private citizens	·         California Consumer Protection Act[337 ·         California’s PAGA ·         Qui tam suits ·         Environmental civil enforcement actions ·         Public-private board arrangements ·         Piggyback and reverse piggyback suits ·         State governments hiring private law firms ·         “Tester” suits
Private law enforcement	Private citizens	Private citizens only	·         Texas’s S.B. 8 ·         Nuisance actions ·         Breach-of-contract suits

 
Copyright © 2025 Nitisha Baronia* , Jared Lucky** & Diego A. Zambrano***

           *     J.D./M.A., Stanford University, 2021; Stanford Law School Rule of Law Fellow; ABA Administrative Law Fellow. All views personal and not attributable to any employer.

            **     Ph.D. Candidate in History, Yale University; J.D., Stanford University, 2022.

            ***       Professor of Law, Stanford Law School. Authors listed alphabetically. For thoughtful comments or conversations, we thank the organizers and enthusiastic participants at several academic conferences at which the authors presented, including the Civil Procedure Conference, Federal Courts Workshop, Yale Law School Faculty Workshop, Vanderbilt Faculty Workshop, University of Michigan Public Law Workshop, as well as (in alphabetical order) Gregory Ablavsky, Rachel Bayefsky, Tony Dorron, Amanda Frost, Amalia Kessler, Leah Litman, Julian Davis Mortenson, Nick Parrillo, James Pfander, Elliot Setzer, Jed Shugerman, Amanda Tyler, Steven Winter, and others.

          [1].     141 S. Ct. 2190, 2207 (2021).

          [2].     See Laufer v. Arpan, LLC, 29 F.4th 1268, 1283–84 (11th Cir. 2022) (Newsom, J., concurring).

          [3].     See Tex. Health & Safety Code Ann. §§ 171.207(a), 171.208 (West 2021).

          [4].     S.B. 1327, 2021–2022 Leg., Reg. Sess. (Cal. 2022); Cal. Bus. & Prof. Code § 22949.65 (West 2023).

          [5].     Jeremy B. White, Judge Strikes Down California Gun Law Modeled on Texas Abortion Measure, Politico (Dec. 19, 2022), https://www.politico.com/news/2022/12/19/california-gun-law-texas-abortion-00074689 [https://perma.cc/V3DD-E84R].

          [6].     H.B. 464, 2024 Gen. Sess. (Utah 2024) (entitled “Social Media Amendments”).

          [7].     Anna Mance, How Private Enforcement Exacerbates Climate Change, 44 Cardozo L. Rev. 1493, 1497–98 (2023) (arguing that private enforcement regimes can empower interest groups to promote narrow interests that are antithetical to the environment and social welfare); Diego A. Zambrano, Neel Guha, Austin Peters & Jeffrey Xia, Private Enforcement in the States, 172 U. Pa. L. Rev. 61, 71 (finding seven hundred environmental private rights of action (PRAs) in the states).

          [8].     Zambrano, Guha, Peters & Xia, supra note 7, at 77 (citing sources).

          [9].     Id. at 93.

        [10].     Id. at 64 (“Scholarship . . . has established that America’s system of private enforcement is without parallel in the world.”). But see Jason Rathod & Sandeep Veheesan, The Arc and Architecture of Private Enforcement Regimes in the United States and Europe: A View Across the Atlantic, 14 U.N.H. L. Rev. 303, 337 (2016) (describing recent European efforts to adopt the American model).

        [11].     141 S. Ct. 2190, 2206 n.1 (2021).

        [12].     United States ex rel. Polansky v. Exec. Health Res., Inc., 143 S. Ct. 1720, 1741 (2023) (Thomas, J., dissenting).

        [13].     See, e.g., Julian Davis Mortenson, The Executive Power Clause, 168 U. Pa. L. Rev. 1269, 1273 (2020); Jed Handelsman Shugerman, Vesting, 74 Stan. L. Rev. 1479 (2022); Aditya Bamzai & Saikrishna Bangalore Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756, 1801 (2023).

        [14].     TransUnion, 141 S. Ct. at 2207 (emphasis added).

        [15].     Dep’t of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 62 (2015) (Alito, J., concurring).

        [16].     Polansky, 143 S. Ct. at 1727–28 (addressing how far a deputized private enforcer may carry a False Claims Act claim); Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 532–33 (2021) (addressing private enforcement of Texas’s S.B. 8); Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906, 1914 (2022) (questioning the private enforcement of labor-code violations on behalf of others).

        [17].     See, e.g., Consumers’ Rsch. v. FCC, 109 F.4th 743, 782–83 n.23 (5th Cir. 2024) (“The private nondelegation doctrine also likely applies to delegations of the executive power to private entities . . . but petitioners did not raise an Article II challenge. If they had, we might also conclude that FCC has unconstitutionally delegated the executive power to private entities.”); Nat’l Horsemen’s Benevolent & Protective Ass’n v. Black, 107 F.4th 415, 428 (5th Cir. 2024) (“The power to launch an investigation, to search for evidence, to sanction, to sue—these are all quintessentially executive functions. And they have been considered so from our Nation’s founding.”); Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 972 (11th Cir. 2020) (Jordan, J., dissenting); Sierra v. City of Hallandale Beach, 996 F.3d 1110, 1116–17 (11th Cir. 2022) (Newsom, J., concurring).

        [18].     United States ex rel. Zafirov v. Florida Medical Associates LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024).

        [19].     See Sierra, 996 F.3d at 1115.

        [20].     Id.

        [21].     See infra Part V.

        [22].     See, e.g., Cass Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 Mich. L. Rev. 163, 197, 211 (1992) (suggesting that qui tam and other common law actions provide a precedent for expansive statutory standing); Ann Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev. 689 (2004) (refuting Sunstein’s account).

        [23].     See Jared Lucky, The Colonial Origins of Consumer Protection Law (forthcoming May 2026) (Ph.D. dissertation, Yale University) (on file with authors).

        [24].     Charles Davenant, An Essay Upon the Probable Methods of Making a People Gainers in the Balance of Trade 55 (1699) (emphasis added).

        [25].     See infra Part III.C.

        [26].     See 8 James Madison, Bills for a Revised State Code of Laws, in The Papers of James Madison 391–99 (Robert A. Rutland, William M.E. Rachal, Barbara D. Ripel & Fredrika J. Teute eds., 1973); 2 Legal Papers of John Adams 147–68, 181 n.28, 396–411 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965); John Marshall, Speech Delivered in the House of Representatives of the United States, on the Resolutions of the Hon. Edward Livingston 28 (Mar. 7, 1800); Joseph Story, Nathan Dane & William Prescott, Preface to The Charters and General Laws of the Colony and Province of Massachusetts Bay (T.B. Wait & Co. 1814); see also infra Part III.C (discussing these papers and speeches, among others).

        [27].     Letter from Richard Harrison to Alexander Hamilton (May 24, 1791), in 8 The Papers of Alexander Hamilton 352–54 (Harold Syrett ed., 1965).

        [28].     Letter from George Washington to Edmund Randolph (Mar. 1, 1791), in 7 The Papers of George Washington 493–95 (Jack D. Warren, Jr., ed. 1998) (explaining the aftermath of Dodge’s petition); see also United States v. Morris, 23 U.S. 246, 287 (1825).

        [29].     Sir James Fitzjames Stephen, History of the Criminal Law of England 496 (1883).

        [30].     Several scholars have detailed some of the history of private enforcement. See, e.g., Scott Stern, Moral Nuisance Abatement Statutes, 117 Nw. U. L. Rev. 613 (2022); Aziz Z. Huq, The Private Suppression of Constitutional Rights, 101 Tex. L. Rev. 1259 (2023); Evan Caminker, The Constitutionality of Qui Tam Actions, 99 Yale L.J. 341 (1989); James E. Pfander, Public Law Litigation in Eighteenth Century America: Diffuse Law Enforcement in a Partisan World, 92 Fordham L. Rev. 469 (2023).

        [31].     Tara Leigh Grove, Standing as an Article II Nondelegation Doctrine, 11 U. Pa. J. Const. L. 781, 827–28 (2009).

        [32].     John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 Duke L.J. 1219, 1230 (1993).

        [33].     Sierra v. City of Hallandale Beach, 996 F.3d 1110, 1138 (11th Cir. 2022) (Newsom, J., concurring) (“Like me, these jurists have questioned the historical basis for the injury-in-fact requirement.”); see James E. Pfander, Cases Without Controversies: Uncontested Adjudication in Article III Courts (2021). Other scholars have exposed standing as a modern construct; see, e.g., Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 Stan. L. Rev. 1371, 1391 (1988). Still, there may well be other justifications for our current standing regime, including stare decisis based on decades of precedent. We take no position on how broad or narrow current standing rules should be.

        [34].     Cf. Ronald Dworkin, Taking Rights Seriously 81, 86–88 (1977) (laying out his “fit” and “justification” criteria).

        [35].     Cf. Stephen B. Burbank, Sean Farhang & Herbert M. Kritzer, Private Enforcement, 17 Lewis & Clark L. Rev. 637, 639–40 (2013) (using a different definition, “situations in which government responds to a perception of unremedied systemic problems by creating or modifying a regulatory regime and relying in whole or in part on private actors as enforcers”).

        [36].     Zambrano, Guha, Peters & Xia, supra note 7, at 77; Žygimantas Juška, The Effectiveness of Private Enforcement and Class Actions to Secure Antitrust Enforcement, 62 Antitrust Bull. 603, 605 (2017); Sean Farhang, The Litigation State: Public Regulation and Private Lawsuits in the U.S. 3 (2010); Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1633 (2018) (Ginsburg, J., dissenting); Stephanie Bornstein, Rights in Recession: Toward Administrative Antidiscrimination Law, 33 Yale L. & Pol’y Rev. 119 (2014).

        [37].     Burbank, Farhang & Kritzer, supra note 35, at 685.

        [38].     42 U.S.C. § 12182.

        [39].     Id. § 12188(a)(1).

        [40].     ADA Title III Regulation, 28 C.F.R. § 36.501(a) (2024).

        [41].     Id.

        [42].     42 U.S.C. § 2000a-3(a).

        [43].     Brief for the United States as Amicus Curiae Supporting Neither Party, Acheson Hotels, LLC v. Laufer, 144 S. Ct. 18 (2023) (No. 22-429); see also Brief for the Chamber of Commerce of the United States of America et al. as Amicus Curiae in Support of Petitioner, Acheson Hotels, 144 S. Ct. 18 (No. 22-429).

        [44].     Of course, scholars have recognized that private enforcement regimes come in different flavors. See, e.g., Luke P. Norris, The Promise and Perils of Private Enforcement, 108 Va. L. Rev. 1483, 1493–94 (2022) (describing differences between private enforcement regimes ranging from qui tam regimes to the Freedom of Information Act).

        [45].     See Barton H. Thompson, Jr., The Continuing Innovation of Citizen Enforcement, 2000 U. Ill. L. Rev. 185, 192 (2000).

        [46].     One of the amicus briefs submitted in a recent ADA case in front of the Supreme Court claims that these three statutes “deputize uninjured private citizens to enforce federal law.” Brief for Center for Constitutional Responsibility as Amicus Curiae in Support of Petitioner at 17, Acheson Hotels, 144 S. Ct. 18 (No. 22-429).

        [47].     42 U.S.C. § 7604.

        [48].     Id. § 7604(a)(1).

        [49].     Mance, supra note 7, at 1497–98 (citing Matthew C. Stephenson, Public Regulation of Private Enforcement: The Case for Expanding the Role of Administrative Agencies, 91 Va. L. Rev. 93 (2005)).

        [50].     Edward J. Little, The Aftermath of the Clean Air Amendments of 1970: The Federal Courts and Air Pollution, 14 B.C. L. Rev. 724, 745 (1973).

        [51].     Jonathan H. Adler, Stand or Deliver: Citizen Suits, Standing, and Environmental Protection, 12 Duke Env’t L. & Pol’y F. 39, 47, 50 (2001); Thompson, Jr., supra note 45, at 192.

        [52].     Adler, supra note 51.

        [53].     Id.

        [54].     Thompson, Jr., supra note 45, at 193.

        [55].     Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 774 (2000); David Freeman Engstrom, Harnessing the Private Attorney General: Evidence from Qui Tam Litigation, 112 Colum. L. Rev. 1244 (2012).

        [56].     Vt. Agency, 529 U.S. at 769.

        [57].     Id.

        [58].     Id. at 772.

        [59].     Thompson, Jr., supra note 45, at 192.

        [60].     Roger A. Greenbaum & Anne S. Peterson, The Clean Air Act Amendments of 1990: Citizen Suits and How They Work, 2 Fordham Env’t L. Rev. 79, 80 (2011).

        [61].     Cass R. Sunstein & Richard B. Stewart, Public Programs and Private Rights, 95 Harv. L. Rev. 1193 (1981).

        [62].     Robert L. Glicksman, The Value of Agency-Forcing Citizen Suits to Enforce Nondiscretionary Duties, 10 Widener L. Rev. 353, 354 (2004).

        [63].     See Randy Beck, Qui Tam Litigation Against Government Officials: Constitutional Implications of a Neglected History, 93 Notre Dame L. Rev. 1235 (2018). Other distinct forms of private enforcement that we do not discuss here include whistleblower laws and the Freedom of Information Act.

        [64].     See, e.g., Maureen Carroll, Fee-Shifting Statutes and Compensation for Risk, 95 Ind. L.J. 1021 (2020); Maureen Carroll, Fee Shifting, Nominal Damages, and the Public Interest, 97 St. John’s L. Rev. 1 (2023).

        [65].     Farhang, supra note 36, at 60.

        [66].     Id. at 81.

        [67].     Fee-shifting provisions, which require losing defendants to pay plaintiffs’ attorneys’ fees, incentivize private enforcement by removing financial barriers to litigation. The Civil Rights Attorney’s Fees Awards Act of 1976 specifically added fee-shifting to civil rights claims to encourage private enforcement and ensure victims of discrimination could access legal representation.

        [68].     See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2207 (2021). The argument explicitly relies on the historical claim that “at common law, individual plaintiffs could sue over violations of their own private rights, but not for violation of public rights, like a defendant’s general noncompliance with the law.” Brief for Center for Constitutional Responsibility, supra note 46, at 2.

        [69].     See TransUnion LLC, 141 S. Ct. 2190, at 2207.

        [70].     See Brief for Center for Constitutional Responsibility, supra note 46, at 2.

        [71].     We thank Amalia Kessler and others for emphasizing this distinction.

        [72].     See, e.g., United States ex rel. Kreindler v. United Techs. Corp., 985 F.2d 1148, 1155 (2d Cir. 1993); United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 748 (9th Cir. 1993); United States ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d 787, 806 (10th Cir. 2002).

        [73].     See, e.g., Sarah Leitner, The Private Rights Model of Qui Tam, 76 Fla. L. Rev. 865, 879 (2024); Jack Goldsmith & John Manning, The Protean Take Care Clause, 164 U. Pa. L. Rev. 1835, 1845 (2016).

        [74].     Grove, supra note 31, at 806; Valley Forge Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464 (1982).

        [75].     Allen v. Wright, 468 U.S. 737, 761 (1984).

        [76].     See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102 n.4 (1998) (“[O]ur standing jurisprudence, which, though it may sometimes have an impact on presidential powers, derives from Article III and not Article II.”); Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 778 n.8 (2000) (citing Steel Co., 523 U.S. at 102 n.4). We thank Elliot Setzer for this and other critical contributions.

        [77].     TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2207 (2021) (emphasis added).

        [78].     Id. at 428 n.1.

        [79].     Friends of the Earth, Inc. v. Laidlaw Env’t Servs., 528 U.S. 167, 174 (2000).

        [80].     Id.

        [81].     Id. at 197 (Kennedy, J., concurring).

        [82].     Id. In a dissent, Justice Scalia agreed that the issue had not been raised and did not address Article II concerns with the statute. See id. at 209 (Scalia, J., dissenting).

        [83].     See Leitner, supra note 73, at 883 n.136. Though the Court has thus far rejected that proposition, in part because of the controls that qui tam provisions place in the executive.

        [84].     See Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 778 n.8 (2000).

        [85].     See United States ex rel. Polansky v. Exec. Health Res., Inc., 143 S. Ct. 1720, 1741 (2023) (Thomas, J., dissenting).

        [86].     William P. Barr, U.S. Dep’t of Just., Off. of Legal Couns., Memorandum Opinion for the Attorney General: Constitutionality of the Qui Tam Provisions of the False Claims Act (1989), https://www.justice.gov/file/151161/dl [https://perma.cc/DAE4-4PBG].

        [87].     Walter Dellinger, U.S. Dep’t of Just., Off. Of Legal Couns., Memorandum Opinion for the General Counsels of the Federal Government: The Constitutional Separation of Powers Between the President and Congress 146 n.65 (1996), https://www.justice.gov/file/146951/dl?inline= [https://perma.cc/PZC3-9HYK].

        [88].     See United States ex rel. Polansky v. Exec. Health Res., Inc., 143 S. Ct. 1720 (2023); Whole Woman’s Health v. Jackson, 142 S. Ct. 522 (2021); Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022).

        [89].     See Laufer v. Arpan LLC, 29 F.4th 1268, 1270 (11th Cir. 2022).

        [90].     Id.

        [91].     Id.

        [92].     Id.

        [93].     Id. at 1271.

        [94].     See Acheson Hotels, LLC v. Laufer, 144 S. Ct. 18 (2023).

        [95].     Laufer, 29 F.4th at 1274.

        [96].     Id. at 1283–84 (Newsom, J., concurring).

        [97].     Id. at 1284 (Newsom, J., concurring).

        [98].     Id. at 1292–93 (citing Zachary S. Price, Enforcement Discretion and Executive Duty, 67 Vand. L. Rev. 671, 701 (2014)). To be clear, although Judge Newsom drew on Price’s scholarship, Price is not a proponent of the Article II Challenge, and, in some ways, he acknowledged that the Framers believed Congress could “strip prosecutorial discretion and calibrate the intensity of federal law enforcement.” Price, supra, at 723.

        [99].     Laufer, 29 F.4th at 1295 (citing Grove, supra note 31, at 822, 837).

      [100].     Id. at 1291.

      [101].     Id. at 1293 (Newsom, J., concurring).

      [102].     Id. at 1289 (Newsom, J., concurring) (citing Sierra v. City of Hallandale Beach, 996 F.3d 1110, 1137 (11th Cir. 2022) (Newsom, J., concurring)).

      [103].     Id. at 1291.

      [104].     See Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 882 (1983). He was not the first to suggest this—in fact, Justice Frankfurter was—but has been easily the most influential jurist in the modern development of standing doctrine.

      [105].     See Grove, supra note 31, at 814.

      [106].     Gillian E. Metzger, Privatization as Delegation, 103 Colum. L. Rev. 1367, 1445 nn.270–71 (2003).

      [107].     Id. at 1367.

      [108].     Dina Mishra, An Executive-Power Non-Delegation Doctrine for the Private Administration of Federal Law, 68 Vand. L. Rev. 1509, 1509–10 (2015).

      [109].     Mishra briefly observed that her theory could jettison certain categories of private suits. Id. at 1537, 1551–53.

      [110].     See Leitner, supra note 73, at 883 (quoting Morrison v. Olson, 487 U.S. 654, 696 (1988)).

      [111].     Grove, supra note 31, at 827–29.

      [112].     Id.

      [113].     As one scholar notes, “[I]f we take the Court’s decision in TransUnion seriously, qui tam as it is currently understood violates Article III and infringes Article II authority.” See Leitner, supra note 73, at 879.

      [114].     See Jonathan Adler, Standing Without Injury, 59 Wake Forest L. Rev. 1, 36–39 (2004).

      [115].     See Jon D. Michaels & David L. Noll, Vigilante Federalism, 108 Corn. L. Rev. 1187 (2023); Huq, supra note 30.

      [116].     For a detailed description, see Huq, supra note 30, at 1328–30.

      [117].     Howard M. Wasserman & Charles W. “Rocky” Rhodes, Solving the Procedural Puzzles of the Texas Heartbeat Act and Its Imitators: The Limits and Opportunities of Offensive Litigation, 71 Am. U. L. Rev. 1029, 1079–83 (2022).

        [118].     See Part II.A.3, supra; see, e.g., Laufer v. Arpan LLC, 29 F.4th 1268, 1284 (11th Cir. 2022) (Newsom, J., concurring).

      [119].     See, e.g., Laufer, 29 F.4th at 1291–95 (Newsom, J., concurring) (identifying the choice of whether to bring suit, and the ability to decline an existing prosecution, with “executive-style enforcement discretion”); Price, supra note 98.

      [120].     Ruth Paley, Introduction to 4 William Blackstone, Commentaries, at i (Wilfrid Prest ed., Oxford Univ. Press 2016) (discussing this passage).

      [121].     1 William Blackstone, Commentaries *258–59.

      [122].     Id. at *259.

      [123].     Id. at *259–60.

      [124].     Indeed, Blackstone’s public/private distinction likely derived more from civil law theory than common law practice. As David Lieberman notes, one of the chief objectives of the Commentaries was to reduce English law to a “system,” through a “selective rationalization and adaptation of a messy and technical body of inherited materials.” David Lieberman, Mapping Criminal Law: Blackstone and the Categories of English Jurisprudence, in Law, Crime and English Society, 1660–1830, at 140 (Norma Landau ed., 2009).

      [125].     Studies of seventeenth- and eighteenth-century court records have confirmed the dominance of privately initiated suits in English criminal justice. See, e.g., 4 Blackstone, supra note 121, at *298–312 (describing each of the “several modes of prosecution” then current in England); Norma Landau, Indictment for Fun and Profit: A Prosecutor’s Reward at Eighteenth-Century Quarter Sessions, 17 Law & Hist. Rev. 507 (1999).

      [126].     1 Blackstone, supra note 121, at *260.

      [127].     J.M. Beattie, Crime and the Courts in England 1660–1800, at 35–50 (1986) (describing private prosecution in eighteenth-century England and tracing the slow rise of public prosecution after 1850). The closest thing to a local public prosecutor in eighteenth-century England was probably the coroner or master of the crown-office, two functionaries who played a merely technical role in filing (though not in litigating) cases brought “at the relation of some private person or common informer.” 4 Blackstone, supra note 121, at *304.

      [128].     Philip B. Kurland & D.W.M. Waters, Public Prosecutions in England, 1854–79: An Essay in English Legislative History, 1959 Duke L.J. 493, 550–62 (1959); David D. Friedman, Making Sense of English Law Enforcement in the Eighteenth Century, 2 U. Chi. L. Sch. Roundtable 475, 476 (1995).

      [129].     Until 1859, when Parliament required private prosecutors of perjury, conspiracy, and libel claims to obtain permission from the Attorney General, “any person could prosecute for any crime and could prosecute any person he could get a magistrate to bind over.” Thomas J. Robinson Jr., Note, Private Prosecution in Criminal Cases, 4 Wake Forest Intramural L. Rev. 300, 304 (1968).

      [130].     4 Blackstone, supra note 121, at *304. A modern editor of the Commentaries notes that informations ex officio were “perceived to be repressive, as they bypassed the grand jury and were usually reserved for political offences.” Paley, supra note 120, at xxiii.

      [131].     4 Blackstone, supra note 121, at *304–05; 1 Joseph Chitty, A Practical Treatise on the Criminal Law 582 (1832) (giving these examples).

      [132].     4 Blackstone, supra note 121, at *304–05. Joseph Chitty’s influential treatise (written at the close of the Founding Era) gave essentially the same account as Blackstone: “[C]riminal prosecutions, though in the name of the king, are usually instituted by some particular individual.” 1 Chitty, supra note 131, at iii.

      [133].     1 Chitty, supra note 131, at 848–49; Stephens, History of the Criminal Law of England 496 (1819).

      [134].     Friedman, supra note 128, at 481–82, 496.

      [135].     See 1 Wayne R. LaFave, Substantive Criminal Law § 2.1 (2d ed. 2003) (noting that “the substantive criminal law began as common law for the most part, and only later became primarily statutory”).

      [136].     See, e.g., Information, Giles Jacob, A New Law Dictionary (1729) (noting that a private plaintiff may proceed “upon the Breach of some Penal Law or Statute, wherein a Penalty is given to the Party that will sue for the same”). There appears to have been a semantic shift in the early nineteenth century; by 1820, Chief Justice Marshall used “penal statute” in a more modern sense, to refer to a federal law punishing “manslaughter on the high seas.” See United States v. Wiltberger, 18 U.S. 76, 93–94 (1820).

      [137].     3 Blackstone, supra note 121, at *159.

      [138].     In 1729, Giles Jacob categorized informer’s suits as civil actions but noted that they could also “be rank’d under criminal actions.” See Actions, Giles Jacob, A New Law Dictionary (1729).

      [139].     See, e.g., 1 Chitty, supra note 131, at 841 (distinguishing between informations “in the name of the king,” i.e., informations ex officio, and informations “at the suit of an informer” that were in fact “modes of qui tam action, for the recovery of a pecuniary penalty, [rather] than criminal proceedings”).

      [140].     2 Blackstone, supra note 121, at *420.

      [141].     3 Blackstone, supra note 121, at *262.

      [142].     Paley, supra note 120, at iii.

      [143].     Stretton and Taylor’s Case (1588) 74 Eng. Rep. 111; 1 Leon. 119 (KB).

      [144].     See R. v. Allen (1861) 1 B. & S. 854, 854–57.

      [145].     Id.

      [146].     See, e.g., Vanderbergh v. Blake (1673) 145 Eng. Rep. 451; Hardres 194, 199.

      [147].     2 Blackstone, supra note 121, at *437.

      [148].     Id.

      [149].     Davenant, supra note 24, at 55–56 (emphasis added) (“In Countries deprav’d, nothing proceeds well, wherein particular Men do not one way or other find their Accompt, and rather than a Publick Good should not go on at all; without doubt, ‘tis better to give Private Men some Interest to set it forward.”).

      [150].     This was William Hawkins’s catchall term for civil private enforcement. See William Hawkins, Pleas of the Crown c. 26, § 1 (1716).

      [151].     Bill of Rights 1689, 1 W. & M. sess. 2, c. 2 (1689) (English Bill of Rights) (stripping this power from the King).

      [152].     Carolyn A. Edie, Revolution and the Rule of Law: The End of the Dispensing Power, 1689, in 10 Eighteenth-Century Studies 434, 435 (1977).

      [153].     Id. The English Bill of Rights, enacted after the Revolution of 1688, declared “[t]hat the pretended Power of Dispensing with Laws or the Execution of Laws by Regall Authoritie as it hath beene assumed and exercised of late is illegall.” Bill of Rights 1689, 1 W. & M. sess. 2, c. 2 (1689).

      [154].     Bruse v. Harcourt (1709) 145 Eng. Rep. 778; Parker 274.

      [155].     Id.

      [156].     Id.

      [157].     Id. Even before the Glorious Revolution, the English courts would probably not have permitted the Crown to remit a private litigant’s claim under a penal statute. See Vanderbergh v. Blake (1673) 145 Eng. Rep. 451; Hardres 194, 199.

      [158].     1 A Vindication of the Proceedings of the Late Parliament of England 2 (1690), quoted in Edie, supra note 152, at 434.

      [159].     See Elizabeth Gaspar Brown, British Statutes in American Law, 1776–1863, at 1–22 (1964).

      [160].     See, e.g., Navigation Act 1660, 12 Cha. 2 c. 18.

      [161].     John H. Langbein, Renee Lettow Lerner & Bruce P. Smith, History of the Common Law 223 (2009); see also Lawrence Friedman, A History of American Law 39 (3d ed. 2005).

      [162].     See, e.g., Sunstein, supra note 22 (suggesting that qui tam and other common law actions provide a precedent for expansive statutory standing); Woolhandler & Nelson, supra note 22, at 689 (refuting Sunstein’s account).

      [163].     See, e.g., Randy Beck, Popular Enforcement of Controversial Legislation, 57 Wake Forest L. Rev. 553 (2022) (discussing the historical precedents for the recent Texas abortion statute); Leitner, supra note 73 (considering constitutional limits of qui tam actions).

      [164].     Richard Beeman, Plain Honest Men: The Making of the American Constitution 65 (2009).

      [165].     The Federalist No. 47, at 298 (James Madison) (Clinton Rossiter ed., 1961).

      [166].     Mass. Const. pt. I, art. XXX.

      [167].     Scalia, supra note 104, at 881.

      [168].     See, e.g., An Act for the Regulating of Tanners, Curriers and Cordwainers, ch. 3, 1698 Mass. Acts 39 (providing that penalties against tanners for failure to comply with quality control regulations shall accrue “to him or them that shall inform and sue for the said fines, penalties or forefeitures; to be recovered by action, bill, plaint or information in any inferior court of common pleas, or before any justice of peace, when the matter doth not exceed the value of forty shillings”).

      [169].     The general practice of permitting the informer to sue by either civil or criminal process continued throughout the period, although the particular enabling language (“by bill, plaint, or information”) did change over time. Cf. An Act to Provide for the Storing and Safe Keeping of Gunpowder in the Town of Cambridge, ch. 35, 1809 Mass. Acts 44 (permitting recovery by information, indictment, or action on the case).

      [170].     This figure is based on text searches for legislative terms specific to informer’s actions, made possible by the state of Massachusetts’s digitization of the Acts and Resolves. See Acts and Resolves, State Libr. of Mass. Digit. Collections, https://hdl.handle.net/2452/2 [https://perma.cc/64NF-HXPB]. Not all of these Acts took effect; some were vetoed by the King (through the oversight of the Board of Trade in London, a committee of the Privy Council responsible for the colonies).

      [171].     See, e.g., An Act for the Regulating of Tanners, Curriers and Cordwainers, ch. 3, 1698 Mass. Acts 39 (creating separate penalties for (1) butchers unlawfully entering the tanning business; (2) tanners unlawfully entering the butchering business; (3) butchers unlawfully cutting oxhides; (4) the sale of insufficiently tanned leather; (5) putting leather into “any hot or warm woozes”; (6) currying uninspected leather, or using “stale urine, or any other deceitful or subtile mixture” to tan leather; (7) making shoes with inferior leather; and (8) refusing to submit to search or inspection of tanned leather on the premises).

      [172].     See, e.g., An Act for Granting unto His Majesty an Excise upon Sundry Articles Hereafter Enumerated, for and Towards the Support of His Maj[es]ty’s Governm[en]t of this Province, ch. 3, 1754 Mass. Acts. 750–53 (imposing duties on tea, coffee, fine china, and imposing a four-pound penalty for selling such articles without paying duty, “one half to the informer,” the other half to the relevant tax official).

      [173].     See, e.g., An Act for Regulating of Fences, Cattle, &c., ch. 7, 1693 Mass. Acts 138 (discussed at length below); An Act To Prevent Neat Cattle, Horses and Sheep Running at Large and Feeding on the Beaches Between Wells and Ogunquit Harbours, In The Town of Wells, and to Prevent the Mowing of the Same, ch. 11, 1757 Mass. Acts 27–28 (forbidding the driving of cattle on certain beaches, and creating a four-shilling per animal penalty, “one moiety thereof to be to the informer that shall sue for the same”).

      [174].     See, e.g., An Act to Prevent the Destruction of Salmon and Other Fish in Merrimack River, Within this Province, 1765 Mass. Acts 741–42 (establishing fines for breaches of fishing regulations and providing that “where any person commences a prosecution, by action or information . . . one half of the forefeiture shall go to the prosecutor,” i.e., the private prosecutor or informer); An Act in Addition to an Act Entitled “An Act for the Better Preservation and Increase of Deer Within this Province,” ch. 3, 1739 Mass. Acts 988–89 (imposing a ten-pound fine for taking of deer out of season, with one moiety to go to “him or them who shall inform and sue for the same”).

      [175].     See, e.g., An Act for Prevention of Common Nusances Arising By Slaughter-Houses, Still-Houses, &c., Tallow Chandlers, and Curriers, ch. 23, 1692 Mass. Acts 59–60 (imposing a five-pound penalty on “all butchers and slaughtermen, distillers, chandlers and curriers” who practice their trade outside designated zones, with one-third payable to “him or them that shall inform and sue for the same”)

      [176].     See, e.g., An Act to Prevent the Spreading of the Small-Pox and Other Infectious Sickness, and to Prevent the Concealing of the Same, ch. 17, 1742 Mass. Acts 35–36 (imposing penalties for violation of smallpox quarantine measures, with one moiety payable “to him or them who shall inform and sue for the same”).

      [177].     See, e.g., An Act for the Restraining the Taking Excessive Usury, ch. 1, 1693 Mass. Acts 113 (imposing forfeiture of all loans made at over six percent interest, with one moiety “to the informer that shall sue for the same”); An Act Against Monopoly and Forestalling, ch. 31, 1779 Mass. Acts 924–25 (prohibiting the purchasing and hoarding of essential goods like wood, grain, flour, meat, corn meal, poultry cheese, and other provisions, with a penalty of five times the value of the goods illegally purchased, “one moiety thereof to the informer or prosecutor”).

      [178].     See, e.g., An Act for the Regulating of Tanners, Curriers and Cordwainers, ch. 3, 1698 Mass. Acts 39 (barring tanners from working as butchers and vice versa, with one third of the fine payable to “him or them that shall inform and sue for the said fines, penalties and forefeitures; to be recovered by action, bill, plaint or information”).

      [179].     See, e.g., An Act to Prevent Deceit in the Gage of Cask, ch. 5, 1731 Mass. Acts 581–82 (standardizing the measure of casks, and imposing a five-pound-per-cask penalty for selling rum or molasses in non-conforming casks, “half to the informer who shall inform and sue for the same”); An Act in Further Addition to An Act, Intitled “An Act For Rendering More Effectual The Laws Already In Being, Relating to the Admeasurement Of Boards, &c., and for Preventing Fraud and Abuse in Shingles, &c., ch. 10, 1750 Mass. Acts 533–34 (standardizing widths for boards and shingles and creating a penalty for inspectors who fail to check boards and shingles, with “one half to the informer . . . to be recovered by bill, plaint, or information”).

      [180].     See, e.g., An Act for Regulating the Building of Ships, ch. 2, 1693 Mass. Acts 114 (later disapproved by the Privy Council).

      [181].     See, e.g., An Act to Regulate the Price and Assize of Bread, ch. 2, 1720 Mass. Acts 166–68 (imposing size, price, and inspection protocols on commercially baked bread, and imposing various fines for failure to comply, one half to “the support of the poor of the town where such offence shall be committed, the other half to the informer”).

      [182].     See, e.g., An Act for the Better Regulating of the Curing and Culling of Fish, ch. 6, 1723 Mass. Acts 286–87 (imposing penalties for failure to abide by codfish inspection rules, “half to the informer, or to him or them that shall sue for the same” in any court of record in the province).

      [183].     See, e.g., An Act for Regulating the Assize of Cask, and Preventing Deceit in Packing of Fish, Beef and Pork, for Sale, ch. 17, 1692 Mass. Acts 49–51 (imposing packing and sealing standards for foodstuffs, with one half of the penalties “payable to the support of the government of this province” and “the other half to him or them that shall inform and sue for the same”).

      [184].     In other words, informer’s actions sometimes (but not always) dovetailed with rights of action that were conferred more narrowly on an aggrieved party. See, e.g., An Act for the Better Curing and Culling of Fish, ch. 2, 1731 Mass. Acts 602–03. Most of the Act laid out quality and inspection standards for cured fish, and created statutory penalties for failure to comply, which could be collected in part by any informer. But a companion provision in the Act required any buyer who had agreed to purchase a load of fish in writing to receive the goods, once they had been properly cured and inspected; if he refused, the buyer would have to “pay to the owner of such fish, ten shilling per [hundredweight].” See also An Act for Regulating of Fences, Cattle, &c., ch. 7, 1693 Mass. Acts 138 (authorizing both “double damages” for harm caused by livestock, and statutory penalties independent of damages).

      [185].     An Act for Regulating of Fences, Cattle, &c., ch. 7, 1693 Mass. Acts 138. The 1693 Act apparently remained in force throughout the following century, with minor amendments in 1751 and 1758.

      [186].     Id. (emphasis added). The per-pig penalty was to be collected by an informer’s action, with half the fine going to the town and half to the prosecuting informer; but the damages provision gave a (potentially) separate right of action to the injured party.

      [187].     The Adams Papers preserve Adams’s notes (and sometimes even his diary entries) on many informer’s actions. See, e.g., 2 Legal Papers of John Adams 147–68, 181 n.28, 396–411 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965). In other words, Adams had plenty of occasions to ruminate on the constitutional implications of private enforcement.

      [188].     Id. at 3 (explaining the case in an editorial note and reproducing Adams’s notes on the matter).

      [189].     Act of 15 Jan. 1743, 1743 Mass. Acts 47–48.

      [190].     See infra Part III.C (discussing the unpopularity of common informers in the eighteenth century).

      [191].     An Act for Continuing Sundry Laws that Are Near Expiring, ch. 18, 1779 Mass. Acts 1120.

      [192].     Mass. Const. pt. II, ch. VI, art. VI.

      [193].     See Joseph Story, Nathan Dane & William Prescott, Preface to The Charters and General Laws of the Colony and Province of Massachusetts Bay (T.B. Wait & Co. 1814) (explaining that there was “no general repeal” of colonial laws in that state and that several remained in force even in 1814).

      [194].     An Act Prescribing the Manner of Devising Lands, Tenements, and Hereditaments, ch. 24, 1783 Mass. Acts 551–58.

      [195].     Id. at 555–56.

      [196].     Hill v. Davis, 4 Mass. 137, 139 (1808) (Parsons, C.J.) (construing this statute in an informer’s action).

      [197].     Id.

      [198].     4 Blackstone, supra note 121, at *167–68.

      [199].     3 Blackstone, supra note 121, at *219.

      [200].     Id.

      [201].     Id. at *221 (discussing ways in which Parliament had extended and contracted the definition of a public nuisance); 1 Chitty, supra note 131, at 851 (listing “keeping great quantities of gunpowder so as to endanger the neighborhood” alongside other nuisances).

      [202].     An Act for Prevention of Common Nusances Arising by Slaughter-Houses, Still-Houses, &c., Tallow Chandlers, and Curriers, ch. 23, 1692 Mass. Acts 59–60.

      [203].     3 Blackstone, supra note 121, at *221 (citing Acts of Parliament treating gunpowder as a nuisance).

      [204].     An Act to Provide for the Storing and Safe Keeping of Gunpowder in the Town of Cambridge, and to Prevent Damage from the Same, ch. 35, 1809 Mass. Acts 44–45.

      [205].     Id. § 1.

      [206].     Id.

      [207].     Examples from Massachusetts, New York, and South Carolina are cited elsewhere in this brief. Examples from all other ratifying states include: An Act to Regulate Marriages, 2 Del. Laws 976 (1790) (dividing recovery of statutory penalties between government and informer); An Act to Explain and Amend an Act Entitled, ‘An Act for the Gradual Abolition of Slavery,’ 1788 Pa. Laws 589 (same); An Act to Regulate the Fisheries, and to Prevent the Obstruction of the Navigation in the River Delaware, 1784 N.J Laws 180 (same); An Act to Regulate the General Elections in this State, So Far as to Impose a Fine on Persons Voting Out of the County Wherein They Reside, 1801 Ga. Laws 11 (same); An Act for Suppressing Mountebanks, Rope-Dancers, Tumblers, &c., 1798 Conn. Pub. Acts 487 (same); An Act to Restrain Surveyors, to Regulate Certain Proceedings in the Land-Office, and to Compel the Attendance of Witnesses on Surveys Under the Authority of the Chancery, General and County Courts, 1789 Md. Laws, at xli–xlii (same); Fish Act, 1788 N.H. Laws 480; An Act to Prevent the Introduction and Communication of Contagious Diseases, 1793 N.C. Sess. Laws 37–38 (same); An Act Regulating the Inspection of Beef, Pork, Pickled Fish and Tobacco, and for Other Purposes Therein Mentioned, 1790 R.I. Pub. Laws 16 (same).

      [208].     8 The Papers of James Madison, supra note 26, at 391–99 (editorial note on James Madison’s manuscript list of Jefferson’s proposed bills).

      [209].     See Gerald Hurst, The Common Informer, 147 Contemp. Rev. 189, 190 (1935). More recent work has captured the profound resentment against informers at the popular level. See, e.g., Jessica Warner & Frank Ivis, ‘Damn You, You Informing Bitch’: Vox Populi and the Unmaking of the Gin Act of 1736, 33 J. Soc. Hist. 299, 300 (1999) (recounting mob action against informers who brought cases under the Gin Act in London).

      [210].     3 Edward Coke, Institutes of the Laws of England 194 (6th ed. 1680). Joseph Chitty’s treatise on criminal procedure noted in passing that “common informer” had become a mere “epithet” on par with “extortioner,” “heretic,” and “vagabond.” 1 Chitty, supra note 131, at 207.

      [211].     See Giles Jacob, A Review of the Statutes, Both Ancient and Modern 8–9 (1715) (digesting limitations on informer’s actions imposed by statutes and case law).

      [212].     Id.

      [213].     Id.

      [214].     A Bill Providing that Actions Popular, Prosecuted by Collusion, Shall Be No Bar to Those Which Be Pursued with Good Faith, reprinted in 2 The Papers of Thomas Jefferson 626–27 (Julian Boyd ed., 1951). The Bill was enacted unchanged on Nov. 28, 1786. See 12 Hening Stat. 354–55 (Va.).

      [215].     An Act for the Ease of the Citizens Concerning Actions upon Penal Statutes, ch. 12, 1788 Mass. Acts 19–21.

      [216].     An Act to Redress Disorders by Common Informers and to Prevent Malicious Informations, ch. 9, 1788 N.Y. Laws 608.

      [217].     Joan E. Jacoby, The American Prosecutor: A Search for Identity 19 (1980) (“Some were county officials appointed by the courts; some were deputies of the Attorney General but were nominated by the county court and operating with little supervision; some were deputies of the Attorney General operating directly under his view.”).

      [218].     See, e.g., Carolyn B. Ramsey, The Discretionary Power of “Public” Prosecutors in Historical Perspective, 39 Am. Crim. L. Rev. 1309, 1323–27 (2002) (tracing the gradual evolution of public prosecution in New York and noting that private prosecutions continued through the 1850s).

      [219].     However, even this suggestion presents a problem for the defenders of the Article II Challenge: Local prosecutors were officers of the states rather than the federal government. The fact that state officers frequently enforced federal law in the Founding Era weighs against the idea that Article II contemplates a truly exclusive enforcement discretion for the federal executive. See Harold J. Krent, Executive Control over Criminal Law Enforcement: Some Lessons from History, 38 Am. U. L. Rev. 275, 303 (1989).

      [220].     4 S.C.L. (2 Brev.) 82 (1806).

      [221].     Id. at 82.

      [222].     S.C. Const. art. II, § 1 (1790).

      [223].     Id. art. III, § 2.

      [224].     Matthews, 4 S.C.L. at 84.

      [225].     Id.

      [226].     Id.

      [227].     Commonwealth v. Churchill, 5 Mass. (4 Tyng) 174 (1809).

      [228].     Id. at 175.

      [229].     Id.

      [230].     Id. at 181–82.

      [231].     Mass Const. pt. I, art. XXX.

      [232].     Churchill, 5 Mass. at 183 (Sedgwick, J., concurring) (emphasis added).

      [233].     Result of the Convention of Delegates Holden at Ipswich in the County of Essex 5–6 (John Mycall ed., 1778).

      [234].     Debates and Proceedings of the Convention of the Commonwealth of Massachusetts 92 (Bradford Kinney Peirce ed., 1856) (1788).

      [235].     Typical examples include Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 972 (11th Cir. 2020) (Jordan, J., dissenting); Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1622 (2020) (Thomas, J., concurring); Sierra v. City of Hallandale Beach, 996 F.3d 1110, 1116–17 (11th Cir. 2022) (Newsom, J., concurring); Laufer v. Arpan LLC, 29 F.4th 1268, 1295 (11th Cir. 2022) (Newsom, J., concurring).

      [236].     14 U.S. (1 Wheat.) 304, 329–30 (1816).

      [237].     John Marshall, Speech Delivered in the House of Representatives of the United States, on the Resolutions of the Hon. Edward Livingston 28 (Mar. 7, 1800).

      [238].     Acheson Hotels, LLC v. Laufer, 144 S. Ct. 18, 25 (2023) (Thomas J., concurring) (citation omitted).

      [239].     Id. at 8.

      [240].     Gregory Ablavsky, Getting Public Rights Wrong: The Lost History of the Private Land Claims, 74 Stan. L. Rev. 277, 347 (2022).

      [241].     2 Blackstone, supra note 121, at *438.

      [242].     Story, Dane & Prescott, supra note 193.

      [243].     6 U.S. (2 Cranch) 336, 341 (1805) (discussing qui tam penalties in Act of Mar. 22, 1794, ch. 11, § 2).

      [244].     See 3 Blackstone, supra note 121, at *159 (noting that the violation of a penal statute “create[s] a debt in the eye of the law,” which “if unpaid, work[s] an injury to the party or parties entitled to receive it; for which the remedy is by action of debt”).

      [245].     The Federalist No. 47, at 324 (James Madison) (Jacob E. Cooke ed., 2010) (“The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.”).

      [246].     The Federalist No. 21, at 134–35 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

      [247].     See The Federalist No. 15, at 110 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

      [248].     Second Draft of an Act for Raising Certain Yearly Taxes Within This State (Feb. 9, 1787), in 4 The Papers of Alexander Hamilton 41–50 (Harold Syrett ed., 1965) (reproducing document in Hamilton’s hand proposing a penalty for tax evasion, “to be recovered by action of debt for the benefit of any informer”).

      [249].     Laufer v. Arpan, LLC, 29 F.4th 1268, 1294 n.4 (11th Cir. 2022) (Newsom, J., concurring).

      [250].     Woolhandler & Nelson, supra note 22, at 731 n.197.

      [251].     E.g., Hawkins, supra note 150, at c. 26, § 17 (discussing when and “in What Cases an Information or Action qui tam will lie,” and how to bring one).

      [252].     See, e.g., Copyright Act of 1790, ch. 15, § 2, 1 Stat. 124, 124–25 (permitting statutory damages for copyright infringement); Patent Act of 1793, ch. 11, § 5, 1 Stat. 318; Act of Mar. 3, 1791, ch. 15, § 44, 1 Stat. 199, 209 (informer’s action for import of liquor without paying duties); Act of May 19, 1796, ch. 30, § 18, 1 Stat. 469, 474 (informer’s action prohibiting trade with Indian tribes); Act of Feb. 20, 1792, ch. 7, § 25, 1 Stat. 232, 239 (informer’s action for failure to comply with postal regulations); Act of Mar. 22, 1794, ch. 11, § 2, 1 Stat. 347, 349 (informer’s action against slave trade with foreign nations).

      [253].     See 7 The Papers of George Washington, supra note 28, at 493–95 n.1 (Jack D. Warren, Jr., ed., 1988) (explaining the aftermath of Dodge’s petition).

      [254].     Id.

      [255].     Tariff Act of 1790, 1 Stat. 177, § 69.

      [256].     Letter from Alexander Hamilton to Richard Harrison (26 Apr. 1791), in 8 The Papers of Alexander Hamilton 312–14 (Harold Syrett ed., 1965).

      [257].     Letter from Richard Harrison to Alexander Hamilton (24 May 1791), in 8 The Papers of Alexander Hamilton 352–54 (Harold Syrett ed., 1965).

      [258].     See The Papers of George Washington, supra note 28, at 493–95 n.1.

      [259].     23 U.S. 246, 287 (1825).

      [260].     The Supreme Court recently revived a different kind of public-private rights distinction in SEC v. Jarkesy, 144 S. Ct. 2117 (2024), in which Justice Gorsuch recognized that “public rights” for the purpose of determining whether an Article III adjudication (an issue beyond the scope of this paper) is necessary “include matters concerning: the collection of revenue; aspects of customs law; immigration law; relations with Indian tribes; the administration of public lands; and the granting of public benefits.” Id. at 2120.

      [261].     See Goldsmith & Manning, supra note 73, at 1839–53.

      [262].     Id. at 1851 (citation omitted). This power, to the extent it exists, is more a scholarly creation than a doctrinal one. See id.; see also Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1, 61–63 (1993).

      [263].     Goldsmith & Manning, supra note 73, at 1842; see also Morrison v. Olson, 487 U.S. 654, 690 (1988).

      [264].     United States v. Nixon, 418 U.S. 683, 693 (1974); see also United States v. Armstrong, 517 U.S. 456, 464 (1996). Other federal courts shared this understanding. See, e.g., United States v. Cox, 342 F.2d 167 (5th Cir. 1965).

      [265].     Todd Garvey, Cong. Rsch. Serv., R43708, The Take Care Clause and Executive Discretion in the Enforcement of Law 14–15 (2014).

      [266].     470 U.S. 821, 832 (1985) (citing U.S. Const. art. II, § 3). For further discussions of this case as it relates to the Take Care Clause, see Goldsmith & Manning, supra note 73, at 1848; Garvey, supra note 265, at 10.

      [267].     Buckley v. Valeo, 424 U.S. 1, 138 (1976).

      [268].     Id.

      [269].     Id. at 278 n.24 (quoting 26 U.S.C. § 437g(a)(7)).

      [270].     Dunlop v. Bachowski, 421 U.S. 560, 562–63, 573 (1975).

      [271].     Outside the civil lawsuit context, the Court has also expressed concerns with requiring the Executive to enforce a civil firearm background-check regime in parallel to the states where it is designed to enable criminal prosecutorial enforcement powers. See Printz v. United States, 521 U.S. 898, 904 (1997).

      [272].     Friends of the Earth, Inc. v. Laidlaw Env’t Servs., 528 U.S. 167, 188 n.4 (2000).

      [273].     See supra Part II.A.

      [274].     TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2206 n.1 (2021).

      [275].     Friends of the Earth, Inc., 528 U.S. at 188 n.4 (quoting 33 U.S.C. §§ 1365(b)(1)(B), (c)(2)).

      [276].     As Alexander Volokh explains, “Delegating coercive power to private parties has long been held to be a potential violation of due process.” Alexander Volokh, The New Private-Regulation Skepticism: Due Process, Non-Delegation, and Antitrust Challenges, 37 Harv. J.L. & Pub. Pol’y 931, 941 (2014).

      [277].     485 U.S. 478, 485–86 (1988). The canonical example of this, of course, is Shelley v. Kraemer, in which the Court ruled that state courts’ enforcement of racially restrictive covenants constituted state action. 334 U.S. 1 (1948).

      [278].     Tulsa Pro. Collection Servs., 485 U.S. at 487.

      [279].     Id.

      [280].     For this reason, a public defender “is not a state actor.” Edmonson v. Leesville Concrete Co., 500 U.S. 614, 626 (1991) (citing Polk County v. Dodson, 454 U.S. 312 (1981)).

      [281].     Id. at 627; see also Shelley, 334 U.S. at 19 (holding that private litigants may not use the courts to enforce racially restrictive covenants); Dennis v. Sparks, 449 U.S. 24, 28 (1980) (bribing a judge).

      [282].     Edmonson, 500 U.S. at 622.

      [283].     Id. at 632 (O’Connor, J., dissenting).

      [284].     Volokh, supra note 276, at 944.

      [285].     Carter v. Carter Coal Co., 298 U.S. 238, 311–13 (1936).

      [286].     Volokh, supra note 276, at 946 & n.74.

      [287].     Id. at 947.

      [288].     Justice Alito expressed regret that the Court had to deny review. See Texas v. Comm’r, 142 S. Ct. 1308, 1309 (2022) (Alito, J., concurring).

      [289].     U.S. Const. art. II, § 3.

      [290].     Martin H. Redish, Private Contingent Fee Lawyers and Public Power: Constitutional and Political Implications, 18 Sup. Ct. Econ. Rev. 77, 97 (2010).

      [291].     See generally Andrew Kent, Ethan J. Leib & Jed Handelsman Shugerman, Faithful Execution and Article II, 132 Harv. L. Rev. 2111 (2019).

      [292].     See U.S. Const. art. I, § 1.

      [293].     Meeker v. Lehigh Valley R.R. Co., 236 U.S. 412, 423 (1915).

      [294].     See Kokesh v. SEC, 581 U.S 455, 456 (2017).

      [295].     Id. at 465.

      [296].     U.S. Const. art. II, § 3.

      [297].     See Barry Boyer & Errol Meidinger, Privatizing Regulatory Enforcement: A Preliminary Assessment of Citizen Suits Under Federal Environmental Laws, 34 Buff. L. Rev. 833, 946–57 (1985).

      [298].     Lujan v. Defs. of Wildlife, 504 U.S. 555, 576–77 (1992). The implication, of course, was that environmental groups would employ such a provision to over-enforce a set of laws the Executive may seek to retain discretion over.

      [299].     See supra Part IV.

      [300].     See supra Part IV.

      [301].     Brief for Center for Constitutional Responsibility, supra note 46, at 2.

      [302].     We thank Chief Judge David J. Barron for this insight.

      [303].     See supra note 207 and accompanying text.

      [304].     See Peter M. Shane, Prosecutors at the Periphery, 94 Chi.-Kent L. Rev. 241, 259 (2019); supra notes 220–224 and accompanying text (discussing two cases in the Early Republic suggesting that informer’s actions were in substance “civil” because they carried only monetary penalties, rather than threat of imprisonment).

      [305].     See, e.g., Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2194 (2020) (identifying criminal prosecution as a “core executive power”).

      [306].     See supra Part IV.

      [307].     See id.

      [308].     See, e.g., Jacob D. Charles & Darrell A.H. Miller, Violence and Nondelegation, 135 Harv. L. Rev. F. 463 (2022).

      [309].     But keep in mind that the 1863 False Claims Act did not subject qui tam claims to complete executive control. That change came later on in the history of qui tam. See 31 U.S.C. §§ 3729–3733.

      [310].     See supra Part III.B.

      [311].     See id.

      [312].     Huntington v. Attrill, 146 U.S. 657, 669 (1892) (quoting Rafael v. Verelst, 2 W. Bl. 1055, 1058).

      [313].     See 31 U.S.C. §§ 3729–3733.

      [314].     See United States ex rel. Polansky v. Exec. Health Res., Inc., 143 S. Ct. 1720, 1727 (2023).

      [315].     See, e.g., Vanderbergh v. Blake (1673) 145 Eng. Rep. 451; Hardres 194, 199.

      [316].     Arthur F. Greenbaum, Government Participation in Private Litigation, 21 Ariz. St. L.J. 853, 905 (1989).

      [317].     Grove, supra note 31, at 783–85.

      [318].     Friends of the Earth, Inc. v. Laidlaw Env’t Servs., 528 U.S. 167, 188 n.4 (2000).

      [319].     Tex. Health & Safety Code Ann. § 171.208(a) (West 2021).

      [320].     Cf. Ex parte Young, 209 U.S. 123, 159–60 (1908) (“If the act which the state Attorney General seeks to enforce be a violation of the Federal Constitution, the officer in proceeding under such enactment, comes into conflict with the superior authority of that Constitution, and he is in that case, stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.”).

      [321].     We thank Amanda Tyler for the language here.

      [322].     Infra Appendix A.

      [323].     Id.

      [324].     Fed R. Civ. P. 24.

      [325].     Infra Appendix A.

      [326].     Infra Appendix A.

      [327].     Infra Appendix A.

      [328].     47 U.S.C. § 325(b)(10).

      [329].     See supra Part V.B.

      [330].     Acheson Hotels, LLC v. Laufer, 144 S. Ct. 18, 22–23 (2023) (Thomas J., concurring). The law and economics literature has always discussed this problem. See William Landes & Richard Posner, The Private Enforcement of Law, 4 J. Legal Stud. 1 (1975); Mitch Polinsky, Private Versus Public Enforcement of Fines, 9 J. Legal Stud. 105 (1980); Murray L. Schwartz & Daniel J.B. Mitchell, An Economic Analysis of the Contingent Fee in Personal Injury Litigation, 22 Stan. L. Rev. 1125 (1970).

      [331].     See Clifford S. Zimmerman, Toward A New Vision of Informants: A History of Abuses and Suggestions for Reform, 22 Hastings Const. L.Q. 81, 159 (1994).

        [332].     As a reference point, 42 U.S.C. § 2000a-3(a) corresponds to a single subsection.

        [333].     Note: The LegalBench private rights task relies on synthetically constructed statutes. So while a higher performance on that task usually correlates with a high performance on actual data, 97 percent on the LegalBench task does not mean 97 percent on real-world data.

        [334].     See, e.g., Cruz v. Arizona, 598 U.S. 17 (2023).

        [335].     See, e.g., Joe Yurcaba, Texas Governor Calls on Citizens to Report Parents of Transgender Kids for Abuse, NBC News, https://www.nbcnews.com/nbc-out/out-politics-and-policy/texas-governor-calls-citizens-report-parents-transgender-kids-abuse-rcna17455 [https://perma.cc/9T5B-QA79] (“Texas Gov. Greg Abbott is calling on ‘licensed professionals’ and ‘members of the general public’ to report the parents of transgender minors to state authorities if it appears the minors are receiving gender-affirming medical care.”); Huq, supra note 30, at 21 (describing historical racial reporting regimes dating to the Jim-Crow era, including vagrancy statutes).

        [336].     One key example of this phenomenon is the FBI’s frequent reliance on private actors to assist with investigations. See, e.g., Ellen Nakashima, FBI Paid Professional Hackers One-Time Fee to Crack San Bernardino iPhone, Wash. Post (Apr. 12, 2016), https://www.washingtonpost.com/world/national-security/fbi-paid-professional-hackers-one-time-fee-to-crack-san-bernardino-iphone/2016/04/12/5397814a-00de-11e6-9d36-33d198ea26c5_story.html [https://perma.cc/Q6XM-XVES].

        [337].     For a description, see Charles W. Rhodes & Howard Wasserman, Solving the Procedural Puzzles of the Texas Heartbeat Act and Its Imitators, 71 Am. U. L. Rev. 1029 (2022).