Unconstitutional

Legislation authorizing private rights of action may violate several provisions of the U.S. Constitution and may run afoul of state constitutional provisions.

Examples of federal constitutional issues

Article II: By vesting the “executive Power” exclusively in the President and requiring him to “take Care that the Laws be faithfully executed,” the constitution prevents Congress from imbuing private parties with executive power.

Non-Delegation: Because Congress makes the laws and the Executive enforces the laws, there are difficult and fundamental legal questions about the delegation of Executive power when Congress authorizes citizen suits.

Lack of Accountability

Private enforcement provisions eviscerate political accountability, which is a vital part of our representative democracy. Private parties empowered to enforce public laws have largely unchecked enforcement power because they are not accountable to voters or elected officials when they use a law for unintended purposes. Voters cannot vote them out of office, and legislators cannot meaningfully use standard tools like oversight hearings or appropriations to guide enforcement.

Discriminatory Enforcement

Private parties could engage in partisan warfare and/or blatantly discriminatory enforcement, including selecting enforcement targets based on political philosophy or a protected class such as race or sex.

Unpredictability

Laws and law enforcement must be predictable. Individuals and businesses often rely on the executive’s interpretation of the law through, among other things, formal rulemaking and guidance documents. However, if private parties can bring lawsuits under novel legal theories or in unanticipated factual circumstances, businesses cannot reasonably rely on the executive’s interpretation. This unpredictability is not only harmful for businesses and individuals, but it also undermines the authority of regulators to guide compliance.

Undermine Citizens’ Constitutional Rights

Legislators seeking to avoid political accountability may use private plaintiffs to escape constitutional limits on executive enforcement. As a result, such laws could disincentivize individuals from exercising their constitutional rights.