This morning, the Supreme Court granted cert in DOT v. Ass’n of American Railroads. This is the case where I filed an amicus brief (together with the Emory Law School Supreme Court Advocacy Project). I discuss the D.C. Circuit opinion here, and the amicus brief here and here; the D.C. Circuit opinion is here, and the amicus brief itself is here. I also write about this and similar issues in my new article in the Harvard Journal of Law and Public Policy, The New Private-Regulation Skepticism: Due Process, Non-Delegation, and Antitrust Challenges. Here’s what I wrote about the case earlier in my blog post:

Amtrak, formally called the National Railroad Passenger Corporation, was created by statute in 1970. Faced with competition from other modes of transport, railroads that offered passenger service had been incurring heavy losses; many of these railroads had petitioned the Interstate Commerce Commission, which at the time regulated railroads, for permission to stop providing passenger service. With the passage of the statute, a railroad could transfer its passenger service responsibilities to Amtrak if it agreed to a number of conditions, one of which was to grant Amtrak the use of its tracks and other facilities. The statute provides that, except in an emergency, an Amtrak passenger car has precedence over another railroad’s freight car when they both need to use the same facilities. Most railroads agreed to these conditions, which were enshrined in a series of bilateral operating agreements.

Fast forward a few decades, to when Congress passed the Passenger Rail Investment and Improvement Act of 2008. One section of the new statute, § 207, required the Federal Railroad Administration (FRA) and Amtrak to “jointly . . . develop new or improve existing metrics and minimum standards for measuring the performance and service quality of intercity passenger train operations, including cost recovery, on-time performance and minutes of delay, ridership, on-board services, stations, facilities, equipment, and other services.” These performance measures aren’t of merely academic interest. Amtrak and its contractual partners are required to incorporate the measures into their operating agreements “[t]o the extent practical.” Perhaps more seriously, if “on-time performance” or “service quality” is substandard for two consecutive quarters, the Surface Transportation Board (STB), an independent agency housed in the Department of Transportation, is allowed to start an investigation (and is required to do so, if a complaint is filed) to check whose fault it is, and can assess damages against the host railroad if the problems are due to the railroad’s failure to grant preference to Amtrak trains.

These metrics and standards are supposed to be developed “jointly” by Amtrak and the FRA. If they can’t agree, they can petition the STB to appoint an arbitrator, whose decision will be binding. Amtrak thus has equal authority with the FRA on this issue; the FRA has to get Amtrak’s consent in developing the metrics and standards (or it has to abide by the decision of an arbitrator, who might also end up being private). The Association of American Railroads sued, charging that this sort of private delegation is invalid; and the D.C. Circuit agreed.

And here’s what I added in my earlier Volokh Conspiracy post:

The main problem with the D.C. Circuit’s private non-delegation doctrine argument, though is that… there is no private non-delegation doctrine. It doesn’t exist. The Supreme Court uses the same non-delegation doctrine regardless of whether the delegate is public or private. The case the D.C. Circuit used to support a special doctrine that would be more skeptical of private delegations — Carter v. Carter Coal Co. (1936) — is actually a Due Process case, not a non-delegation case. My view is that this delegation violates due process, not non-delegation, so the D.C. Circuit got it right for the wrong reason.

Moreover, it makes a big difference which theory we adopt: a due process rationale also applies against the states, and due process challengers can get damages under § 1983 or Bivens, which they can’t if the basis for the opinion is the non-delegation doctrine.

I’ll probably be filing an amicus brief on the merits, when the time comes. Check out my post, VC posts, JLPP article, and actual amicus brief in support of cert for more details about the case and my arguments.