Supreme Court

Today at SCOTUS: Did Congress Delegate Illegal Regulatory Powers to Amtrak?


Credit: Slambo / / CC BY-SA

Article 1, Section 1 of the U.S. Constitution vests "all legislative powers" in the hands of Congress. Yet in 2008 Congress placed vast regulatory powers in the hands of Amtrak, a private railroad corporation charted by Congress in 1970 under the mandate that it "shall be operated and managed as a for-profit company." Thanks to that 2008 power grant, Amtrak now enjoys the privilege of developing federal regulations that directly impact both its own economic success and that of its competitors in the freight rail sector. Today the U.S. Supreme Court will hear oral argument on whether or not Congress overstepped its constitutional bounds when it gave Amtrak the power to set federal rules governing the entire railroad industry.

At issue today in Department of Transportation v. Association of American Railroads is the Passenger Rail and Improvement Act of 2008. Among other things, that law instructs Amtrak and the Federal Railroad Administration (FRA) to "jointly develop" metrics and regulatory standards governing timetables, on-time performance, equipment, and other crucial aspects of the railroad business. Should Amtrak and the FRA fail to reach consensus, a private arbitrator may be summoned to settle the matter. In other words, federal law lets a private arbitrator affirm the rule-making judgment and authority of a private corporation over that of a federal agency.

Unsurprisingly, Amtrak's competitors filed suit. According to the Association of American Railroads, whose members include freight rail companies that own roughly 97 percent of the track which Amtrak uses (and who also compete with Amtrak for track space and priority), the federal metrics developed by Amtrak in 2009 impose ruinous costs on freight carries. Furthermore, the railroads argue, because Amtrak is a private entity, it had no business writing any sort of federal regulations in the first place.

That argument prevailed at the U.S. Court of Appeals for the District of Columbia Circuit, which overruled Congress and came down against Amtrak in July 2013. Writing for a unanimous 3-judge panel of the D.C. Circuit, Judge Janice Rogers Brown chastised the federal government for bestowing "unprecedented regulatory powers" on a private firm. The Obama administration's defense of the contested scheme, Brown argued, violates the non-delegation doctrine and "vitiates the principle that private parties must be limited to an advisory or subordinate role in the regulatory process."

Judge Brown got it right. According to federal law, Amtrak "is not a department, agency, or instrumentality of the United States." It is a private entity seeking to maximize profit. Congress therefore had no lawful right to delegate any legislative power to this self-interested railroad corporation. The D.C. Circuit should be affirmed. Amtrak and its federal enablers should lose.

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  1. Amtrak is not actually a private firm in the sense in which that is generally understood. It’s owned by the US government and has we have seen before with the “privatization” of the US Postal service all this does is create something which is a de-facto government agency without any of the accountability which normal government agencies (theoretically) have. US Postal inspectors still retain federal LEO powers, AMTRAK can bully the track owners due to the must-carry mandate, etc.

    1. They also have law enforcement powers:

      1. Thanks. That, too.

      2. I’d be shocked if Amtrak police (active and retired) don’t also have national concealed carry privileges.

      3. I see your police, and raise you Amtrak’s Office of Security Strategy and Special Operations,

        which does not answer to the leadership of the existing Amtrak Police Department, has created SWAT-like units, and intelligence liaison relationships with our intelligence agencies and conducted hostage rescue training exercises — REP. HOLT (D-NJ)

      4. The private freight railroads also have their own police with real sworn officers. The Bulls are sort of notoriously brutal.

        1. My ex-wife’s grandpa (god rest his soul) had a permanent lump on his skull from a railroad dick’s billy club.

        2. They also have their own SWAT teams too.

  2. I don’t see anywhere in the constitution where confess can delegate their authority to make law to any other entity, private or government. But I kinda doubt SCOTUS wants to open that can of worms.

    1. But I kinda doubt SCOTUS wants to open that can of worms.

      SCOTUS is chill with Congress delegating/abdicating its legislative authority to the President, at least. Where do you think the Federal Register comes from?

    2. It’s the FYTW clause that’s written in special ink that we can’t see.

  3. What’s up with the army men in the article above this?

    1. Wondering the same thing. I guess somebody thought they were being clever.

      1. They did the same thing with TV last month.

    2. An inexpensive and inoffensive way to depict the military without risking criticism by using pictures of servicemembers?

  4. the railroads argue, because Amtrak is a private entity, it had no business writing any sort of federal regulations in the first place.

    I want to give Congress the benefit of the doubt and not ascribe malice to their decision but rather complete and utter ignorance of what is Amtrak in reality.

    Be that as it may, the fact that Congress would delegate such regulatory powers to a transportation company reeks too much of the N.R.A. of New Deal years, where you had a few companies imposing regulatory statutes on prices and distribution that spelled ruin for many a competitor and generated a series of lawsuits that ended in landmark decisions by the Supreme Court, either in favor or for the detriment of freedom, depending on the different cases.

  5. If I had to guess, I would say that the constitution contains the words ‘all legislative power’ referring to congress because the people actually making laws were intended to be held directly accountable by the voters for the laws they make.

    In my opinion, the entire body of rules and regulations created by any body other than congress are unconstitutional. But then I also think this federal government has strayed so far beyond the bounds of the constitution that it is no longer legitimate.

    1. The federal government has become what the Founders fought a war to escape.

  6. Congress is looking to offload its responsibilities on anyone it can. Regulators and other executive agencies, the courts, lobbyists, you name it.

    1. One of the bigger problems with our system is allowing Congress to cede legislative power to the executive. If the courts were worth a crap, they’d zap this every time.

      1. My dad was a circuit court judge. 40 years ago as a punk teenager I aruged with him how it could be constitutional for executive agencies to write regulations (laws). I guess 17 year old me was smarter than supreme court justices.

        1. If not smarter, certainly more ethical and principled. They had one job. . . .

          1. Principles. Maybe from watching all the cowboy shows of the era.

  7. What difference – at this point – does it make?

    HILLARY – 2016!

    1. +1 proper quotation

    2. It’s almost funny that she keeps trying to be relevant. By any objective measure, she fails and commits gaffes almost continuously. If she were a Republican, the media would crucify her.

      1. Haven’t you seen that campaign video. She’s down home country. Why I reckon she’s just ordinary folk like you and me.

        1. Which fake accent does she use?

          I’ll consider voting for her if she releases a video of her singing “Common People.”

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