Challenging State Acts of Authorization Under the Fourteenth Amendment: Suggested Answers to an Uncertain Quest

The holdings in Flagg Brothers and Jackson suggest the central question addressed in this article: To what extent are state acts of authorization immunized from judicial review on the merits? Using the fact situations in Flagg Brothers and Jackson as paradigms, the two types of challenges that can be made in a typical fact situation involving the state action issue are first described. These two models are then discussed in relation to Flagg Brothers, Jackson, and other Supreme Court decisions that implicate the state action issue. With that discussion as a predicate, this article next considers the procedural problems that inhere in challenging state acts of authorization in both the state and federal court systems and concludes that, in both court systems, state acts of authorization should be subject procedurally to judicial review on the merits.