The D.C. Circuit on private delegation

A few weeks ago, Jonathan Adler noted the recent D.C. Circuit decision in Ass’n of Am. Railroads v. DOT. I now have a post up on the Reason Foundation website about it. Here’s an excerpt:

On July 2, 2013, in Ass’n of American Railroads v. DOT, the D.C. Circuit struck down a delegation of authority to Amtrak in § 207 of the Passenger Rail Investment and Improvement Act of 2008, holding that the statute unconstitutionally delegated regulatory power to a private party. This is a significant case for several reasons.

First, it’s potentially significant in terms of constitutional doctrine. In holding that private delegations of regulatory authority are illegitimate, the case seems to go against the conventional wisdom, which is that there is no special doctrine for private delegations by Congress: the Nondelegation Doctrine applies equally to public and private recipients of delegated congressional authority by Congress. Moreover, this conventional wisdom is probably right. The D.C. Circuit’s decision may yet be correct under the Due Process Clause, but the D.C. Circuit deliberately refused to choose whether this delegation implicated the Nondelegation Doctrine or the Due Process Clause.

Second, it’s potentially significant in terms of its real-world effect on delegations to private parties—though, again, much depends on precisely why the delegation is unconstitutional. If the decision rests on the Nondelegation Doctrine, it only affects federal delegations; but if it rests on the Due Process Clause, it also affects the much broader set of state delegations.

Third, in holding, based on a multi-factor analysis, that Amtrak is a private actor, it provides yet another example of how the public-private distinction is fuzzy, and an entity that is public for one reason might be private for another.

I think the D.C. Circuit is wrong in its analysis, that this should have been a Due Process decision (therefore binding the states as well), and that Amtrak should have been considered a state actor for purposes the Due Process Clause because of the Lebron decision that decided that Amtrak was a state actor for First Amendment purposes. Still, the D.C. Circuit might have come to the right result on these facts.

You can see my other Reason posts here, including one on privatized regulation and antitrust and one on the antitrust state action doctrine.