The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Justice Thomas on the nondelegation doctrine and separation of powers


Today's decision in Dep't of Transportation v. Ass'n of American Railroads deals primarily with whether Amtrak should be considered a private entity or a governmental one—the Court unanimously says it's governmental. Sasha's post, which I highly recommend, discusses the case in much more detail.

Justice Thomas, though, has a long and detailed dissent about the separation of powers and the nondelegation doctrine. I can't do it justice in a short post, but here is how it closes (paragraph break added):

In this case, Congress has permitted a corporation subject only to limited control by the President to create legally binding rules. These rules give content to private railroads' statutory duty to share their private infrastructure with Amtrak. This arrangement raises serious constitutional questions to which the majority's holding that Amtrak is a governmental entity is all but a non sequitur. These concerns merit close consideration by the courts below and by this Court if the case reaches us again.

We have too long abrogated our duty to enforce the separation of powers required by our Constitution. We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.

Justice Alito also has a separate concurrence, suggesting that the way Amtrak is structured might well be unconstitutional, for instance because the way some of its officers are appointed may violate the Appointments Clause. Very interesting.