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

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, however,
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.