CONTENTS INTRODUCTION I. PRIVATIZATION OF PUBLIC GOVERNMENT FUNCTIONS A. The National Organ Transplant Act B. Rationale for the Administration of OPTN by the Non-Profit UNOS C. Constitutionality and Accountability II. AGENCY ACCOUNTABILITY: ROLE OF JUDICIAL REVIEW IN Private Delegation A. Judicial Review and the APA B. Substantive Review of Agency Actions C. Court-Created Judicial Review Doctrines: Skidmore and Chevron III. FUTURE APPLICATIONS: WHO DECIDES? A. Using the "Only the Court System" and Judicial Review B. Internal Review of Protocol Initiated by the Agency C. The Hybrid Method: Judicial and Internal Review CONCLUSION INTRODUCTION
On June 15, 2013, ten-year-old Sarah Murnaghan underwent a successful bilateral lung transplant. (1) The fact that Sarah underwent a lung transplant is not a unique event or an astounding breakthrough in modern medicine or science. (2) What makes Sarah's story unique is how she received her lung transplant. Since December 2011, Sarah had been on the waiting list for child-donated lungs. Because she was under twelve years old, Sarah was placed on only the pediatric list, meaning that she would get priority on child-donated lungs but would be at the very bottom of the list of candidates for adult-donated lungs. (3) In May 2013, Sarah's condition began to decline rapidly, and she was admitted to the ICU at the Children's Hospital of Philadelphia. Concerned that nothing would be done in time to save their child, the Murnaghans started a petition asking Secretary of Health and Human Services, Kathleen Sebelius, to set aside the under-12 rule for lung transplants. (4) The petition called for the OPTN/UNOS lung review board to make an exception for Sarah and consider the validity of the under-12 rule as it applies to all children seeking lung transplants. (5) In late May 2013, Secretary Sebelius consulted with the President of the OPTN (Organ Procurement and Transplantation Network) Board of Directors, Dr. John Roberts, but as of June 5, the Secretary had not taken any formal action in Sarah's case. (6) Due to the lack of response, Sarah's parents filed a complaint for a temporary restraining order (TRO) and injunctive relief in the United States District Court for the Eastern District of Pennsylvania on June 5, 2013. The complaint sought judicial review of OPTN's under-12 rule for lung transplants and a TRO suspending the policy as it applied to Sarah. (7) The TRO was granted (8) and Sarah was allowed to go on the adult transplant list, where she quickly received a set of lungs. (9)
Sarah has since returned home and continues to improve. But the circumstances surrounding her lung transplant raise many legal and ethical questions, particularly about whether a judge should be the one to determine that the protocol is inefficient and therefore interfere in OPTN procedures to temporarily dictate the agency's policy. More fundamentally, this case raises questions about who should review and how they should review agency actions when private, non-government actors run the agency. Moreover, it raises questions of whether non-government actors should even administer these agencies and what must be done with time-sensitive issues such as organ transplantation. (10)
This Note advocates a hybrid policy that uses judicial review for immediate remedies to agency decisions made by private actors but allows the agency to determine if any long-term reforms to the protocol should be made and what the nature of those reforms should be. Part I discusses the legal framework surrounding the creation of OPTN as well as why the privatization of OPTN is justified. Part II examines agency accountability through the use of judicial review and examines the OPTN regulations using these judicial review rationales. Lastly, using the Murnaghan case as a framework, Part III advocates a solution to cases like that of Sarah Murnaghan, for which judicial review of the agency determination is used along with deference to decision making by the private, non-government agency, creating a hybrid method for generating timely solutions that are effective for the petitioner but also recognize that policy decisions creating long-term changes should be left to the agency.
PRIVATIZATION OF PUBLIC GOVERNMENT FUNCTIONS
The National Organ Transplant Act
In 1984, Congress passed the National Organ and Transplant Act (NOTA). (11) The Act "called for a singular transplant network to be operated by a non-profit organization under federal contract." (12) The Act grants the Secretary of Health and Human Services the power to make a grant in order to establish a qualified organ procurement organization. (13) This qualified organization must be a non-profit, must be fiscally stable or have procedures to insure fiscal stability, and must be certified within the four years prior to the Act "as meeting the performance standards of a qualified organ procurement organization." (14) This organ procurement agency is called the Organ Procurement and Transplantation Network (OPTN). (15) OPTN's function is to establish a national organ registry for both those in need of organs and potential donors. (16) The OPTN falls under the direction of the Health Resources and Services Administration (HRSA), (17) but the non-profit United Network for Organ Sharing (UNOS) administers the network and transplant lists. (18) UNOS was given the initial contract for the administration of the OPTN in 1986 and has administered the network ever since. (19) Even though UNOS is responsible for administering the transplant network, the leadership between UNOS and OPTN is seamless. The OPTN has its own board of directors that creates the organ allocation protocols used by UNOS, but every member of the UNOS board is also a member of the OPTN board. (20)
Although the OPTN is administered by a non-profit organization that does not include any government actors, the OPTN is still a government agency. It was created by an act of Congress and falls under the auspices of the Secretary of Health and Human Services and the HRSA. Because the OPTN is a government agency but is administered by non-government actors, this raises the question of whether the privatization of such government functions is justified. Article I of the Constitution states, "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives," (21) yet this language neither explicitly prohibits nor permits Congress to make broad delegations to administrative agencies. (22) Congress's ability to make such delegations rests on the separation of powers doctrine and is permissible "as long as Congress creates sufficient safeguards to ensure that the assignment will not impermissibly undermine the ability of any branch of government to perform its constitutional role." (23) Congress may have the power to make delegations to non-government agencies, but there are some limits within which Congress must operate for these delegations to be constitutional. (24)
Rationale for the Administration of OPTN by the Non-Profit UNOS
Since the late twentieth century, the United States government has increasingly delegated what were traditionally considered public functions to private actors. (25) In his first term alone, President Obama continued this trend of government outsourcing by utilizing private actors for areas of government administration ranging from Homeland Security to collecting overdue taxes and modernizing Coast Guard vessels. (26) While this practice is extremely popular today, the courts did not always look upon such delegations favorably.
During the New Deal, the Supreme Court wanted to limit private delegations of power by both Congress and President Roosevelt. (27) In A.L.A. Schechter Poultry Corp. v. United States, (28) the Court declared, "Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry." (29) Similarly, in Carter v. Carter Coal Co., (30) the Court held that the Bituminous Coal Conservation Act was unconstitutional because " [t]he power conferred upon the majority is, in effect, the power to regulate the affairs of an unwilling minority. This is legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons." (31) The majority referred to by the Court consisted of mining operations that produced more than two-thirds of the nation's coal and employed more than one-half of the nation's coal miners. (32) The delegation in Carter Coal was so repugnant to the Court because it was not to a regulatory government body but to the titans of the coal industry who would likely further their own interests at the expense of smaller mining operations. (33) The Court's reasoning in both Schechter Poultry and Carter Coal suggests that those decisions were not really about Congress's giving up power to agencies but about decisions that stemmed from the Court's fears about delegating the exercise of public authority to the private sector. The Court feared that the private sector lacked the ability to constrain government actors and the decision-making capabilities to act as disinterested parties. (34)
Although the nondelegation doctrine rose to prominence during the New Deal, the Court's decisions in cases such as Carter Coal and Schechter Poultry are largely viewed as "atypical." (35) The Court has never overturned these New Deal era decisions, but, as indicated earlier, these are the only cases in which the Court struck down a federal law on nondelegation grounds. (36) The Court has "thus continued to accept the delegation of the power to make rules to agencies. Vague delegations that otherwise might be excessive would pass muster if the scope of...