Next year, the Supreme Court will revisit the much-discussed, rarely enforced non-delegation doctrine. This morning the Court granted certiorari in Department of Transportation v. American Association of Railroads, in which the Court will consider whether the extent to which there are judicially enforceable limits on the government’s ability to delegate authority to private entities. Via SCOTUSBlog, here is the question presented:
Whether Section 207 of the Passenger Rail Investment and Improvement Act of 2008, which requires the Federal Railroad Administration (FRA) and Amtrak to “jointly . . . develop” the metrics and standards for Amtrak’s performance that will be used in part to determine whether the Surface Transportation Board (STB) will investigate a freight railroad for failing to provide the preference for Amtrak’s passenger trains that is required by federal law, and provides for the STB to appoint an arbitrator if the FRA and Amtrak cannot agree on the metrics and standards within 180 days, effects an unconstitutional delegation of legislative power to a private entity.
Last year, 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. As I noted here, this was a rare invocation of the non-delegation doctrine by a federal court. Then again, it is not all that often that the federal government delegates such extensive authority to a putatively non-governmental entity. Sasha Volokh also blogged on the D.C. Circuit’s decision here.
UPDATE: Sasha also filed an amicus brief in the case. He blogged about it here.