A Rare Non-Delegation Decision

On Tuesday, the U.S. Court of Appeals for the D.C. Circuit held in Association of American Railroads v. U.S. Department of Transportation that Section 207 of the Passenger Rail Investment and Improvement Act of 2008 constitutes an unconstitutional delegation of legislative authority to a private entity.

Here is how Judge Janice Rogers Brown summarizes the opinion:

Imagine a scenario in which Congress has given to General Motors the power to coauthor, alongside the Department of Transportation, regulations that will govern all automobile manufacturers. And, if the two should happen to disagree on what form those regulations will take, then neither will have the ultimate say. Instead, an unspecified arbitrator will make the call. Constitutional? The Department of Transportation seems to think so.

Next consider a parallel statutory scheme—the one at issue in this case. This time, instead of General Motors, it is Amtrak (officially, the “National Railroad Passenger Corporation”) wielding joint regulatory power with a government agency. This new stipulation further complicates the issue. Unlike General Motors, Amtrak is a curious entity that occupies the twilight between the public and private sectors. And the regulations it codevelops govern not the automotive industry, but the priority freight railroads must give Amtrak’s trains over their own. Whether the Constitution permits Congress to delegate such joint regulatory authority to Amtrak is the question that confronts us now.

Section 207 of the Passenger Rail Investment and Improvement Act of 2008 empowers Amtrak and the Federal Railroad Administration (FRA) to jointly develop performance measures to enhance enforcement of the statutory priority Amtrak’s passenger rail service has over other trains. The Appellant in this case, the Association of American Railroads (AAR), is a trade association whose members include the largest freight railroads (known in the industry as “Class I” freight railroads), some smaller freight railroads, and—as it happens—Amtrak. Compl. ¶ 10, at 4. Challenging the statutory scheme as unconstitutional, AAR brought suit on behalf of its Class I members against the four Appellees—the Department of Transportation, its Secretary, the FRA, and its Administrator (collectively, the “government”). Id. ¶¶ 14–17, at 6–7. We conclude § 207 constitutes an unlawful delegation of regulatory power to a private entity.