Standing Doctrine's State Action Problem

2. Due Process Just as due process is a "potential limit on the private exercise of regulatory power," (173) it is also a potential limit on the private exercise of the power of government standing. Due process prohibits a deprivation of life, liberty, or property except in accordance with law. (174) The Founders linked this due process guarantee with structural values. Nathan Chapman and Michael McConnell explain that early court decisions applying due process to legislative acts "were consistently based on [a combined] ... separation-of-powers and due process logic." (175) On this logic, " [legislative acts violated due process [when] ... they exercised judicial power or abrogated common law procedural protections." (176) Thus, a due process violation could inhere in an improperly structured delegation of authority. (177) A similar structural link between due process and delegation, Ann Woolhandler has argued, existed from the Reconstruction until the New Deal. (178) In this vein, in Yick Wo v. Hopkins the Court struck down under the Due Process Clause a standardless delegation of authority to city officials, who were free to discriminate against Chinese-Americans when deciding whether to grant permits to operate laundries. (179) Liberal democracies demand that government action be based upon public reasons, not raw preferences, or what Yick Wo called "the play and action of purely personal and arbitrary power." (180) Eventually this under standing of due process expanded to include substantive review of legislative action. (181) According to the Court's contemporary gloss, the Due Process Clauses aim at a "scheme of ordered liberty" and a "fair and enlightened system of justice" that are "rooted in the traditions and conscience of our people." (182) These traditions recognize "the basic unfairness of depriving citizens of life, liberty, or property, through the application ... of arbitrary coercion." (183) a. Arbitrary Enforcement This concern with arbitrary coercion arises across an array of due process doctrines that impose limits upon substantive law and enforcement design, including the private nondelegation doctrine already discussed (184) and doctrines that address criminal law and procedure as well as civil procedure and remedies. i. Criminal Law and Procedure In Oyler v. Boles, the Court held that due process precludes a prosecutor from prosecuting an individual based upon "an unjustifiable standard such as race, religion, or other arbitrary classification." (185) Selective prosecution may violate due process where the prosecutor singles out a defendant for his exercise of another constitutionally protected right, such as the right to free speech, (186) where there is evidence of arbitrary prosecutorial policies, (187) or where a prosecutor makes a charging decision out of personal vindictiveness. (188) Indeed, even the "potential for vindictiveness" may violate due process. (189) Due process does not, however, entail reasonableness review of every prosecutorial decision. Federal courts are reluctant to police prosecutorial discretion in the ordinary course, reasoning "that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions." (190) In United States v. Armstrong, the Court held that if the prosecutor has probable cause to charge, the decision to do so (or not) "generally rests entirely in his discretion." (191) It thus falls to structural constraints on prosecutorial discretion and subconstitutional law prophylactically to address the risk of arbitrary enforcement by public prosecutors. Some structural checks on arbitrary prosecutions stem from the Due Process Clause itself. The Court's void-for-vagueness cases explain that a constitutional concern with arbitrary enforcement is "basic," (192) deeply rooted,193 and cuts across the usual conceptual division between structure and rights. …