Environmentalists' Authority To Sue Industry For Civil Penalties Is Unconstitutional Under the Separation of Powers Doctrine

William H. Lewis Jr.

Editors' Summary: The recent wave of citizen suits to enforce federal pollution control laws has touched off waves of controversy, much of it over the fact that citizen enforcers can sue for civil penalties under the Clean Water Act. Two aspects of the civil penalty cases have provoked debate: whether plaintiffs may sue for penalties for past violations where the defendant is now in compliance with the Act, and whether settlements of citizen enforcement suits may direct that payments may be paid to private institutions for environmental quality work in lieu of penalties. This article raises a third issue, whether Congress may constitutionally authorize citizens to sue for civil penalties in the first place. The author contends that the separation of powers doctrine, as interpreted by the Supreme Court, precludes Congress from assigning executive functions to anyone outside the Executive Branch. Citizen suits for injunctive relief to abate pollution are not barred, because they vindicate the personal interests of the litigants, but suits for penalties serve only the national interest in law enforcement. They therefore are executive functions that may be delegated only to Executive Branch officials.

Mr. Lewis is a partner in the Washington, D.C. office of Morgan, Lewis & Bockius. In connection with his environmental practice, he has handled a range of matters involving constitutional questions. The analysis in this article was initially developed for a motion for summary judgment in a recently settled citizen suit.

[16 ELR 10101]

The controversy in recent years over the citizen suit authority for enforcing federal environmental requirements has centered largely around the question of whether civil penalties should be recoverable when violations are proved — as is already authorized under two major statutes and is being considered by Congress for others. Now an unconventional resolution seems likely — a finding that the civil penalty authority is unconstitutional. This outcome, it should be pointed out, would still leave intact the less controversial citizen right to seek injunctive relief against violators of pollution control standards.

Beginning with the 1976 decision of the Supreme Cout in Buckley v. Valeo,¹ the separation of powers doctrine under the Constitution has been interpreted as prohibiting congressional delegation of executive authority — such as the responsibility for bringing civil enforcement actions — to persons outside the Executive Branch. This general proposition was confirmed most recently in the unconstitutionality ruling on the Gramm-Rudman-Hollings Act² in Synar v. United States.³ There, the separation of powers doctrine was held to be violated by Congress' vesting executive functions in the Comptroller General as a part of the process for reducing the federal budget deficit.

Surprisingly, however, industry has never based a constitutional challenge of the citizen suit civil penalty authority on the seminal holding in Buckley and the later, consistently decided cases on separation of powers. In fact, apparently in only one case, Student Public Interest Research Group v. Monsanto Co.,⁴ has the constitutionality of the civil penalty authority ever been raised. In that case, the federal district court concluded that the authority is constitutional. However, the court failed to consider the reasoning in Buckley and the other separation of powers precedents that confine the carrying out of executive functions, in general, and the civil enforcement responsibility, in particular, to officers of the Executive Branch.

Background on Citizen Suits for Civil Penalties

Since the enactment of the Clean Air Act in 1970,⁵ Congress has included in virtually every major pollution control law authority for individual citizens to sue industry [16 ELR 10102] for violations of federal pollution control requirements. The principal procedural prerequisites established for bringing citizen suits are that federal or state enforcement actions not have been initiated, that the citizens bringing the suits have standing to do so, and that notice be given to EPA, the state, and the alleged violator sixty days prior to suit.⁶ Citizen suit provisions typically authorize actions to "enforce" violated requirements, that is, they authorize injunctive relief to halt further violations.⁷

The Clean Water Act provides broader powers, and has since 1972, including authority to recover civil penalties in citizen actions.⁸ But until similar penalty authority was added to the Resource Conservation and Recovery Act (RCRA)⁹ in 1984,¹⁰ the Clean Water Act was the only statute to so provide. Indeed, there appears to be no federal law enacted for any purpose, other than these two, which permits private citizens to bring suits for monetary relief in the form of penalties that are exclusively payable to the federal Treasury, as distinguished from private damages.¹¹

In recently years, however, Congress has considered adding authority under other environmental laws for citizens to bring suits for civil penalties. Not only were amendments to RCRA for that purpose enacted two years ago, but the House-passed bill to amend the Comprehensive Environmental Response, Compensation, and Liability Act¹² would allow penalties in citizen enforcement suits.¹³

The citizen suit civil penalty authority in the Clean Water Act was invoked relatively infrequently during the first decade following the law's enactment.¹⁴ Beginning in 1983, though, resort to actions under this authority — which allows recovery of up to $10,000 per violation — increased five- to tenfold for each subsequent year. In 1983 alone, 62 suits¹⁵ seeking in the range of $100 million in penalties were filed.

Civil penalties ultimately recovered in citizen suits under the Clean Water Act, like those recovered in government actions, are to be paid to the federal Treasury. However, of the penalty amounts industry paid in response to citizen suits in 1983, the recipients of more than 90 percent appear to have been environmental organizations, not the federal government.¹⁶ In addition, an amount equivalent to about 400 percent of the penalties paid to the federal Treasury was paid to reimburse environmental groups for their attorneys fees.¹⁷

Violation of Separation of Powers Doctrine

The overriding constitutional question raised by Congress' authorization of the recovery of civil penalties in citizen suits is whether this delegation of the federal government's civil enforcement function to private individuals or their representatives violates the Constitution's separation of powers. Subsumed in this inquiry is the related question of whether citizens have standing to bring actions for relief that goes beyond that required to protect their private interest or compensate them for private damages. In other words, do they have standing to bring actions on behalf of the broader public interest? Likewise subordinate, but also important, are the fundamental due process issues raised when individual citizens not encumbered by broader obligations are authorized to operate under the mantle of the federal government in suing other citizens. The standing and due process issues will not, however, be addressed here.

As the Supreme Court pointed out in Immigration and Naturalization Service v. Chadha¹⁸ in finding legislative veto provisions unconstitutional, the Constitution "sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial, to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility."¹⁹ Under this doctrine of separation of powers, the Supreme Court has made it clear, beginning before Chadha in Buckley v. Valeo,²⁰ that the carrying out [16 ELR 10103] of executive functions must be assigned to an official of the Executive Branch. As the Chief Justice stated in his dissenting opinion in Nixon v. Administrator of General Services,²¹ separation of powers is "in no sense a formalism. It is the characteristic that distinguished our system from all others conceived up to the time of our Constitution."²²

The three judge panel in the Gramm-Rudman case noted that the commonly held view is:

[T]he central constitutional method of protecting individual freedoms from being overridden by government ukase is to prevent governmental intrusions into certain defined zones of individual conduct. Thus, we quite rightly applaud actions enshrining constitutional rights to freedom of speech, religion, privacy, and equal protection."²³

However, as the district court stresses, the founding fathers "'did not employ this technique'" in drafting the original articles of the Constitution.²⁴

Rather, they emphasized the virtues of limiting governmental power and then dividing the remaining power among autonomous government compartments. Hence, most of our constitutional rights of individual liberty or autonomy are stated in constitutional amendments. The body of the Constitution as originally written is principally an exercise in applying the concepts of federalism and separation of powers to the new American nation….²⁵

In federal court decisions finding infringement of the Executive's authority, the separation of powers precepts were found to be violated because Congress had impermissibly retained a role in selecting — and in some cases, in maintaining discretion to remove — the specific officials who were to carry out functions found to be exclusively the prerogative of the Executive Branch. For example, in Buckley v. Valeo, which involved a successful challenge to the membership of the Federal Election Commission, a majority of the Commission was to be appointed by Congress, rather than by the President. In the Gramm-Rudman case, the objection of the three-judge panel was that Congress, not the President, had the power of removal over the Comptroller General, who had been given responsibility for executive functions. Underlying each of these decisions is a recognition of the "hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power…."²⁶

The constitutional infirmities seem even more fundamental in the case of congressional delegation of executive functions to individuals who are not officers of any branch of the federal government. In such instances, the separation of powers problems remain, but potential standing and due process issues, as noted above, also arise.

Article II, Section 1 of the Constitution vests "[t]he executive Power' in the President, and Article II, Section 4 provides that the President is charged with the task of taking care that the laws are "faithfully executed." Thus, based upon the plain language of these two sections, citizen suits for civil penalties clearly infringe on the powers of the Executive Branch, if either (1) the bringing of enforcement actions to recover civil penalties is in reality an executive function, or (2) citizen actions for that purpose would interfere with the President's execution of federal law.

That enforcement actions to protect the public interest are the quintessential executive function is one of the most elementary principles underlying the framework of the Constitution. As the Supreme Court stated in Buckley v. Valeo, "[a] lawsuit is the ultimate remedy for a breach of the law, and it is to the President … that the Constitution entrusts" the carrying out of that responsibility.²⁷

The Supreme Court made a similarly definitive statement more than a century before:

[I]t is clear that all [civil litigation] so far as the interests of the United States are concerned, are subject to the direction, and within the control of, the Attorney-General.²⁸

Later, the Court was equally unequivocal in Springer v. Philippine Islands,²⁹ when it stated:

Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions.

The conclusion in Buckley, which builds on these precedents, seems dispositive of the question whether citizen suits for civil penalties are constitutional. Similar to its authorization of citizens bringing enforcement actions to recover civil penalties to protect the public interest, Congress likewise had provided in the federal elections law for persons not appointed by the President to carry out enforcement functions.

The Supreme Court held that such vesting of a commission made up of non-Presidential appointees with the "responsibility for conducting civil litigation in the courts of the United States for vindicating public rights … violate[s] Art. II, § 2, cl. 2, of the Constitution."³⁰ The Court stated that "[s]uch functions may be discharged only by persons who are "Officers of the United States."³¹ This restriction is, of course, not satisfied in the case of citizen suits for civil penalties. It is the citizens groups themselves, not the Executive, that select these private enforcers. Moreover, no mechanism is provided for ensuring that many of the constraints imposed on public officials in bringing enforcement actions will be observed.³²

[16 ELR 10104]

The foregoing reading of Buckley is buttressed by the position of the Department of Justice in its brief in Synar v. United States.³³ The Department stated that Buckley stands for the proposition "that any person not [appointed by the President may not] exercise any law administration functions, and that Congress's attempt to confer [those] functions on such persons [would be] constitutionally defective."³⁴ This position was accepted also by other parties in Synar.

In contrast to the civil penalty authority under the Clean Water Act and RCRA, private rights of action established under other statutes are limited to obtaining injunctive relief or compensation for a private injury. Thus, for example, in the case of what is possibly the most prominent statutory authorization of private actions to enforce the law, namely under the antitrust statutes, § 4 of the Clayton Act states that "any person injured in his business or property" shall be entitled to recover damages.³⁵ Section 16 authorizes suits for injunctive relief by a person or corporation to prevent "threatened loss or damage."³⁶ Enforcement of the public interest (as opposed to enforcement of private claims), however, is vested in federal agencies.³⁷ Though the private remedy authorized by the antitrust laws (which includes treble damages) additionally serves a public purpose in deterring antitrust violations, its primary object is compensation of private injury.³⁸

In sum, there can be little question that the authorization of citizen suits to recover civil penalties is an executive function. As such, it must be exercised by officers of the United States in the Executive Branch or their delegates. Since environmentalists and other private citizens fail to meet this criterion, the statutory provision authorizing them to bring civil penalty actions is unconstitutional under the separtion of powers doctrine.

Possible Countervailing Arguments

In Student Public Interest Research Group v. Monsanto Co.,³⁹ the single reported case in which the constitutionality of the civil penalty authority has been addressed, the federal district court pointed out that Congress frequently has authorized private rights of action that benefit the public interest. The district court relied on other conclusions as well. The court quoted the Supreme Court's acknowledgement in Davis v. Passman⁴⁰ that "it is entirely appropriate for Congress … to determine … who may enforce [new laws] and in what manner."⁴¹ Further, it stated that it did not believe that a distinction "between statutes authorizing citizens suits for damages … and this statute's authorization for payment of penalties to the Government … is of consequence,"⁴² particularly emphasizing that there is a substantial element of public interest protection in private damage actions under many laws. The court noted also that citizen actions could be brought without interfering with enforcement actions of the government. Finally, the court expressed the view that no greater "prosecutorial" powers are granted in civil penalty actions than under private damage actions.⁴³

Even though the thrust of much of what the court said in Monsanto has merit, the Supreme Court and lower court decisions discussed in the separation of powers analysis above show that the court's ultimate conclusion is wrong. It is true, and not just in the environmental area, that there is typically a degree of public interest protection in private actions that Congress has authorized. But the outside boundary for such actions still must be drawn so that it does not include civil penalty actions for one simple reason: the Constitution, as interpreted by the Supreme Court, requires it. An enforcement remedy being pursued solely to protect the public interest, as distinguished from a private attorney general action with public interest overtones, is exclusively within the province of the Executive Branch. Moreover, the issue of whether private citizens can seek such public interest remedies without interfering with the Executive's role is not the threshold question that must be addressed. If the responsibility is that of the Executive Branch in the first place, Congress does not have the authority to displace the Executive's complete control in carrying it out.

Related to this interference argument is a possible contention that because citizens do not have the principal or exclusive role in enforcing the clean water or hazardous waste requirements, or in bringing civil penalty actions, problems under the separation of powers doctrine do not arise. But there is no basis in the case law for making such a distinction. In some cases, it is true, the focus of the inquiry in considering the separation of powers issue has concerned the extent to which the delegation of authority by Congress would interfere with the Executive Branch in its carrying out of constitutionally mandated functions.⁴⁴ But where this has been the case, the issue being addressed was the potential effect of congressional delegation of legislative functions to the Executive, not Congress' delegation of executive functions outside the Executive Branch.⁴⁵ Thus, these cases appear to have no relevance to the question of the constitutionality of citizens' civil penalty suits.⁴⁶

Even if the extent of interference were germane, the information regarding numbers of civil penalty actions brought and amount of penalties asked for shows,⁴⁷ from a practical standpont, that citizens' civil penalty actions are not merely a modest supplement to EPA's enforcement authority under the Clean Water Act. These facts nevertheless appear to have no bearing on the real issue. The Constitution, as interpreted in pertinent case law, simply does not authorize Congress to set up checks on the Executive Branch by delegating executive functions to nonexecutive officials.

This is true regardless of how laudable the objectives [16 ELR 10105] might be and whether they could be pursued in a responsible manner. As the Supreme Court pointed out in Chadha:

[T]he fact that a given law or procedure is efficient, convenient and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives — the hallmarks — of democratic government….⁴⁸

If delegation to nongovernment officials can be permissibly authorized, it must, according to the separation of powers doctrine, be accomplished under the auspices of the Executive, not the Legislative Branch.

Furthermore, if the line is not drawn as the separation of powers decisions require, the question becomes where should it be drawn? One potential extension of the citizen suit authority in the environmental area shows that the doctrine operates to protect a number of public interests and, as the Chief Justice noted, is not simply "a formalism." If the civil penalty authority were constitutional, Congress could presumably likewise authorize criminal actions to be brought by citizens against alleged violators in instances where the Executive Branch chooses not to act.⁴⁹ To be sure, there might be situations in which Congress might wish to change the manner of the Executive's carrying out of its role in bringing such actions, and in some instances perhaps with good justification. The likelihood of such tension did not escape the drafters of the Constitution; they knew it was inherent in the checks and balances embodied in the separation of powers concept. The Supreme Court has made clear, however, that congressional delegation circumventing the prerogatives of the Executive Branch is not an acceptable response.

The Monsanto decision thus treated the distinction between private damage actions and civil penalty suits in a manner that totally failed to take into account the implications of the Supreme Court's interpretations of the separation of powers doctrine and the policy reasons that show the correctness of the doctrine being enforced in the context of civil penalty suits. However, since the district court was not presented with an analysis incorporating the Buckley decision and the other separation of powers cases that mandate that executive functions be carried out by officials of the Executive Branch, the court's unwillingness to take the extraordinary step of finding the civil penalty authority unconstitutional is not surprising.

The plaintiff environmental group in Monsanto, searching for an analogue to justify civil penalty suits, argued that these actions are only an updated version of the common law qui tam action. This type of suit originated as a legal means for informers in England to obtain a bounty. However, these actions, like private attorney general actions, are not analogous. The bounty cases involve suits for private recovery too.

The Rivers and Harbors Act of 1899⁵⁰ contains the only authorization of qui tam actions in the environmental field. It authorizes informers to receive bounties equivalent to one-half of whatever amounts the government recovers from those found to have violated the Act's limitations on dumping refuse into navigable waters, but has been construed to not permit actions by private individuals. Federal courts have held that the right to bring suits was granted by statute exclusively to the Attorney General.⁵¹

Individual citizens have been authorized to seek to recover amounts payable to the federal Treasury in qui tam actions outside the environmental area, but potential penalty amounts were very small. For example, bounty hunters were authorized under the Informer's Act to bring actions to recover damages and a small amount required to be forfeited, and then keep one-half of the judgment awarded.⁵² However, under this law and all others prior to the Clean Water Act, actions for penalties were only authorized to be brought by citizens in situations where the suing party was permitted to retain a share of the penalties. Penalty amounts expected to be recovered in those cases were small, although the amount of damages proved could result in substantial recoveries in some insurances.

Whether such qui tam laws would continue to be enforceable today is unclear. They were principally authorized because of the private recovery feature and thus represent a much more limited infringement on the role of the Executive Branch than actions brought to recover civil penalties payable exclusively to the federal Treasury. But they are inconsistent nonetheless with Buckley v. Valeo and the other recent separation of powers decisions. However this issue might be decided, qui tam actions are in any event clearly distinguishable from cttizen suits for civil penalties under the Clean Water Act and RCRA.

Conclusion

The statutory authority challenged here as a violation of the separation of powers doctrine was established for the express purpose of furthering the public interest. However, as the three judge panel in the Gramm-Rudman case pointed out, "'part of the value of a clearly expressed, constitutional separation-of-powers principle often inheres in its apparent rigidity or inability to adapt easily to different solutions,'" and acting consistently with this doctrine "'promotes stability, predictability and consistency, and avoids constant reexamination of troublesome policy issues.'"⁵³

Little imagination is required to conjure up images of the abuse that could occur, if private citizens were authorized in all contexts to bring civil penalty actions in instances where they believed the government had failed to take appropriate action. Today's well-intentioned violation of fundamental constitutional principles could easily become the justification for excess tomorrow.

The real issue then seems to be where to draw the requisite line between permissible and impermissible private actions. The Supreme Court's recent decisions made it clear that congressional delegation of executive functions to individuals who are not officers of the Executive Branch violates the Constitution. Applying this separation of powers principle, the citizen suit civil penalty authority simply cannot pass muster.

1. 424 U.S. 1, 118-144 (1976).

2. The formal title of the Act is the Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 99-177, 99 Stat. 1037; it is commonly referred to simply as Gramm-Rudman.

3. Nos. 85-3945, -4106 (D.D.C. Feb. 7, 1986), review granted, 54 U.S.L.W. 3548 (U.S. Feb. 24, 1986) (Nos. 85-1377, -1378).

4. 600 F. Supp. 1474, 15 ELR 20294 (D.N.J. Jan. 21, 1985).

5. 42 U.S.C. §§ 7401-7642, ELR STAT. 42201.

6. See generally Miller, Private Enforcement of Federal Pollution Control Laws (pts. 1-3), 13 ELR 10309 (Oct. 1983), 14 ELR 10063 (Feb. 1984), 14 ELR 10407 (Nov. 1984).

7. Clean Air Act § 304, 42 U.S.C. § 7604, ELR STAT. 42256; Federal Water Pollution Control Act § 505, 33 U.S.C. § 1365, ELR STAT. 42147; Marine Protection, Research, and Sanctuaries Act § 105(g), 33 U.S.C. § 1415(g), ELR STAT. 41865; Noise Control Act § 12, 42 U.S.C. § 4911, ELR STAT. 41505; Endangered Species Act § 11(g), 16 U.S.C. § 1540(g); Deepwater Port Act § 16, 33 U.S.C. § 1515, ELR STAT. 41709; Resource Conservation and Recovery Act § 7002, 42 U.S.C. § 6972, ELR STAT. 41921; Toxic Subtances Control Act § 20, 15 U.S.C. § 2619, ELR STAT. 41348; Safe Drinking Water Act § 1449, 42 U.S.C. § 300j-8, ELR STAT. 41116; Surface Mining Control and Reclamation Act § 520, 30 U.S.C. § 1270, ELR STAT. 42421; and Outer Continental Shelf Lands Act § 23, 43 U.S.C. § 1349(a), ELR STAT. 42466.

8. 33 U.S.C. § 1365(a), ELR STAT. 42147.

9. 42 U.S.C. §§ 6901-6987, ELR STAT. 41901.

10. RCRA § 7002(a)(2), 42 U.S.C. § 6972(a)(2), ELR STAT. 41921.

11. A few old statutes authorized bounty hunters to bring lawsuits to recover small amounts of penalties where they were to receive a portion of whatever was recovered. See infra text accompanying notes 50-52.

12. 42 U.S.C. §§ 9601-9657, ELR STAT. 41941.

13. H.R. 2817, 99th Cong., 1st Sess. § 206, 131 CONG. REC. H11547 (daily ed. Dec. 10, 1985).

14. ENVIRONMENTAL LAW INSTITUTE, CITIZEN SUITS: AN ANALYSIS OF CITIZEN ENFORCEMENT ACTIONS UNDER EPA-ADMINISTERED STATUTES III-10 (1984).

15. Id.

16. In citizen suit settlements, industry has often made payment to environmental organizations designated by, but different from, the groups bringing the actions.

17. The information is based upon a review of consent orders entered in 1983.

18. 462 U.S. 919, 13 ELR 20663 (digest) (1983).

19. 462 U.S. at 951.

20. For the four decades prior to the Supreme Court's decision in Buckley v. Valeo, 424 U.S. at 118-144, the Court generally took a "functionalist" approach in determining whether the Constitution's separation of powers had been violated. This era began with the Court's finding in Humphrey's Executor v. United States, 295 U.S. 602 (1935), that the President could not remove a Federal Trade Commissioner in contravention of federal law. In this decision and other subsequent ones, the Court considered "flexible tests" that "depend on the imperatives of events and contemporary imponderables" in determining whether there had been an impermissible infringement on presidential power. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634-55 (1952) (Jackson, J., concurring). During that period, independent commissions were routinely upheld as constitutional — even though the President could not remove commissioners — on grounds that "special expertise and impartiality justified independence from the President." See generally Note, Incorporation of Independent Agencies into the Executive Branch, 94 YALE L.J. 1766, 1767 (1985). The switch in the past decade to a more rigid approach to interpreting the separation of powers, under which all governmental power is divided into three, and only three, separate branches, represents a return to the principles set forth in Myers v. United States, 272 U.S. 52 (1926), where removal of executive officials was held to be an exclusively executive power. Showing how complete the transformation appears to be, no other Justice joined in Justice White's Chadha dissent in 1983 when he followed the previously embraced functionalist approach. 462 U.S. at 978 (White, J., dissenting).

21. 433 U.S. 425 (1977).

22. Id. at 507.

23. Synar v. United States, Nos. 85-3945, -4106, slip. op. at 49-50, quoting Krattenmaker, Article III and Judicial Independence: Why the New Bankruptcy Courts are Unconstitutional, 70 GEO. L.J. 297, 301 (1981).

24. Id. at 301-02.

25. Id.

26. Chadha, 462 U.S. at 951.

27. 424 U.S. at 138.

28. Confiscation Cases, 74 U.S. 454,458-459 (1869).

29. 277 U.S. 189, 202 (1928).

30. 424 U.S. at 140.

31. Id.

32. A stronger argument to the effect that the citizen suit civil penalty authority should be found constitutional might have been possible during the period that the Supreme Court followed a more "functionalist" approach in evaluating arguable infringements on executive power. See supra note 20 for a discussion of the evolution in the Court's rulings in this area. However, congressional delegation of executive functions to private citizens represents such a substantial potential encroachment on the checks and balances envisaged in the Constitution that, even under the functionalist line of cases, the civil penalty authority would appear to have been susceptible to successful challenge. The arguments used in the past to justify independence from the executive — such as the need for expertise and nonpartisan officials — appear much less applicable in the citizen suit context. See, e.g., Humphrey's Executor, 295 U.S. 602.

33. Nos. 85-3945, -4106 (D.D.C. Feb. 7, 1986).

34. Brief of Department of Justice at 48, Synar v. United States, Nos. 85-3945, -4106 (D.D.C. Feb. 7, 1986).

35. 15 U.S.C. § 15.

36. Id. at 26.

37. See, e.g., 15 U.S.C. §§ 41 et seq. (Federal Trade Commission Act); 15 U.S.C. § 13 (Clayton Act § 2, authorizing Federal Trade Commissoin prosecution of actions for price discrimination); and 15 U.S.C. § 21 (Sherman Act § 4, delegating enforcement to various agencies).

38. See generally SULLIVAN, ANTITRUST 769-774, 785 (1977); AREEDA & TURNER, 2 ANTITRUST LAW § 331 (1978).

39. 600 F. Supp. 1474, 15 ELR 20294.

40. 442 U.S. 228 (1979).

41. 600 F. Supp. at 1478, 15 ELR at 20296.

42. Id.

43. Id.

44. See, e.g., United States v. Nixon, 418 U.S. 683, 711-712 (1974).

45. See Nixon v. Administrator of General Services, 433 U.S. 425 (1977).

46. See also In re Application of the President's Commission on Organized Crime, 763 F.2d 1191 (11th Cir. 1985).

47. See supra text accompanhing notes 14-15.

48. 462 U.S. at 944.

49. See generally Connecticut Action Now v. Roberts Plating Co., 457 F.2d 81, 2 ELR 20157 (2d Cir. 1972), for a discussion that assumes Congress could authorized private citizens to bring criminal actions.

50. 33 U.S.C. §§ 401-466n, ELR STAT. 41141.

51. See, e.g., Jacklovich v. Interlake, Inc., 458 F.2d 923, 2 ELR 20140 (7th Cir. 1972).

52. U.S. ex rel. Marcus v. Hess, 317 U.S. 537 (1942).

53. Synar v. United States, Nos. 85-3945, -4106, slip. op. at 50, quoting Krattenmaker, Article III and Judicial Independence: Why the New Bankruptcy Courts are Unconstitutional, 70 GEO. L.J. 297, 311 (1981).