This Comment has two goals. First, it seeks to contextualize, within the reality of institutional racism, the debate over the private enforceability of federal regulations under 42 U.S.C. § 1983. On the one hand, the regulations promulgated pursuant to Title VI of the Civil Rights Act of 1964 already include many provisions which effectively confront the vestiges of racially discriminatory law and policy. The logical inference is that these perfectly proscriptive federal regulations ought to be enforceable, through private lawsuits if necessary, in order to enjoin and deter such policy and procedure. On the other hand, federal administrative agencies have the ability to attend to the complex social, political, and economic factors perpetuating systematic racial discrimination, and this is a compelling reason to recognize and encourage such activity on their part in the future. The second aim of this Comment is to contribute to the developing discourse by proposing a more sound approach to the legal question of whether agencies can exercise their delegated authority to create rights that are privately enforceable under § 1983. Split decisions in the circuit courts and two United States Supreme Court cases not squarely addressing the issue but nonetheless suggesting the answer have begun to produce a small body of competent scholarship. However, not only has most of this commentary failed to contextualize the legal issue with respect to racial justice and equal protection, the legal arguments for refusing to recognize agencies' power to create individually enforceable rights are untenable. The primary doctrinal justification relies on a theory of the nondelegation doctrine that is marked by remarkable obsolescence--such a narrow view of legislative delegation “flies in the face of seventy years of administrative law.” A refusal to recognize agencies' power to create privately enforceable rights serves little purpose but to maintain a withering and unworkable framework for addressing exercises of delegated authority, while at the same time risking the loss of a very effective tool in confronting institutional racism. It also represents a crabbed conformity to the current trend in the federal judiciary of limiting remedies for the violation of rights, which is, in turn, a serious threat to the realization of equal justice under law. Part II of this Comment will sketch the contours of institutional spheres where racism persists today. Part III of this Comment then proceeds to acquaint the reader with the relevant cases and commentary that have addressed the issues relating to the private enforceability of federal regulations as a matter of law. These sources focus primarily on principles of administrative law, statutory interpretation, and congressional intent as to the creation of individually enforceable rights and remedies. Part IV of this Comment will then undertake a discussion of the nondelegation doctrine and its theoretical bases in the context of regulatory rights creation, which compels the conclusion that the soundest approach is to recognize the power of agencies to create rights privately enforceable under § 1983, so long as the discretion to do so is properly constrained by particularized judicial review.
Brian J. Sutherland, Killing Jim Crow and the Undead Nondelegation Doctrine with Privately Enforceable Federal Regulations, 29 SEATTLE U. L. REV. 917 (2006).