I first argue that Free Enterprise Fund should cabin congressional delegations of significant authority to private parties, whether to self-regulatory organizations or private experts. Such delegations deprive the President of the ability to superintend implementation of the law. I conclude, however, that a similar delegation to a state entity should survive the Free Enterprise Fund analysis. Although the same concern for executive branch control exists, our structure of federalism presupposes that the federal government can share power with the states. The fear of congressional aggrandizement is much reduced when Congress delegates to state as opposed to private entities. Accordingly, the essay concludes that Free Enterprise Fund should bar delegations of significant authority to private individuals and groups but leave untouched most congressional efforts to share power with state governmental entities.

Nonetheless, establishment of the registry threatens privacy in a number of ways. Many individuals are open about their diabetes, but others prefer to keep that information to themselves, whether because of concerns for discrimination in the workplace or for ramifications in custody disputes. Although New York City’s regulation includes a confidentiality provision, privately identifiable information may be divulged through the notification process set up by the City, under which both physicians and patients are notified when their hemoglobin tests are dangerously high; through subpoenas in criminal and family court actions, and through use of the information by public health researchers to conduct epidemiological research. Regulators have already indicated that, despite the confidentiality provision, they intend to use the registry to conduct public health research that can only be attained by combining registry information with other statistics about the individuals covered. Moreover, there is no confidentiality provision at all for physicians, and operation of the registry may intrude upon the sanctity of the physician/patient relationship by providing physicians with troubling incentives either to circumvent the reporting requirements or to ensure that their patients appear healthier than they are. After considering the ways in which implementation of the registry potentially compromises privacy, the article concludes with a list of specific recommendations for both the NYC and future registries targeted at noninfectious diseases. In short, we recommend making the confidentiality provision more explicit, limiting secondary uses of the information obtained, protecting diabetics from adverse insurance consequences due to operation of the registry, and protecting the privacy of physicians.