The Law: The Influence of the President in the Adoption and Enforcement of Private Rights of Action

Abstract

Litigation by private parties is authorized by dozens of federal statutes, resulting in thousands of lawsuits every year. Recent scholarship has suggested that Congress authorizes litigation by private parties to enforce federal law in order to limit the ability of the president to influence enforcement. I argue, however, that the apparent influence of presidential partisanship on adoption of private enforcement regimes is spurious, resulting from the increased use of this enforcement mechanism beginning in the 1960s. Further, I show that presidents meaningfully influence the rate of private litigation. Specifically, for statutes with liberal policy goals, litigation rates are substantially higher when a Democratic president is in office and when agencies are more politicized. Therefore, if Congress desires to insulate policy from the president, private enforcement regimes are unlikely to be a useful policy tool.