The Association of American Railroads filed its brief a week ago, and yesterday I filed my D.C. Circuit amicus brief, making similar arguments to those I made at the Supreme Court. My lawyer was fellow Alito clerk Chris Paolella of Reich & Paolella. (Chris has done a lot of appellate and Supreme Court litigation — including a 9-0 win in a case I’ve written about, Millbrook v. United States, which concerned the law-enforcement-officer proviso to the Federal Tort Claims Act.) Thanks also to my research assistant Ryan Pulley, who also worked on my original Supreme Court cert petition and merits briefs with the Emory Law School Supreme Court Advocacy Program.
You can read the whole brief here, but here’s the summary of the argument:
1. Congress’s delegation of authority to Amtrak to develop metrics and standards violates the Due Process Clause. Amtrak is required by statute to act as a profit-making entity, and it is a longstanding due process doctrine that self-interested parties, whether public or private, may not wield regulatory power. Although this doctrine has an exception—where a disinterested party must approve the self-interested party’s exercise of authority before it has any effect—the extent of Amtrak’s authority under this statutory scheme is so great that Amtrak does not fall within it. If a disinterested party, such as the Federal Railroad Administration, were determined to block Amtrak’s self-interested regulatory proposals, it would not necessarily be able to do so.2. The appointment of a private arbitrator does not violate any per se rule against delegations of authority to private parties. The Supreme Court has repeatedly upheld such delegations based on the same doctrine that applies to delegations to public parties. Carter v. Carter Coal Co., 298 U.S. 328 (1936), is not to the contrary, as it was decided under the Due Process Clause, not under the non-delegation doctrine. D.C. Circuit precedent does not foreclose the interpretation of Carter Coal as being a due process case, not a non-delegation case. Nor does dictum in A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), support a per se rule against delegations to private parties. Thus, even if this Court decides that the arbitrator appointed under the statute may be private, this Court should not strike down the statutory provision under a per se rule against private delegation.