The private enforcement of public law is a central feature of the American administrative state. As various scholars have argued, the federal government depends upon private parties to enforce public laws through litigation in order to achieve the government’s regulatory objectives. This scholarship has, however, largely overlooked the phenomenon of private enforcement in the national security arena. This Article seeks to describe and analyze national security’s private enforcement for the first time. In doing so, it explores what national security’s private enforcement reveals about the costs of private enforcement more broadly. In particular, this Article identifies an important downside to private enforcement that existing literature has largely ignored—namely its potential to reinforce the state’s “despotic powers” and “despotic purposes.” Despotic power represents the state’s ability to do as it pleases without being accountable or responsive to all or certain members of society. Despotic purpose focuses on the state’s pursuit of illiberal policies and practices. National security’s private enforcement demonstrates how private enforcement can promote the government’s despotic purposes and powers by reinforcing state policies that undermine civil liberties and target communities that are marginalized and have little say or control over the government’s actions.
To read this Article, please click here: The Private Enforcement of National Security