I filed an amicus brief in the D.C. Circuit to try to convince the D.C. Circuit to resolve the case on Due Process, not non-delegation, grounds. (My lawyer was fellow Alito clerk Chris Paolella, of Reich & Paolella; my research assistant was Ryan Pulley.)
Today, the D.C. Circuit handed down its new opinion in the case. Most importantly, it cites my Harvard Journal of Law & Public Policy article, The New Private-Regulation Skepticism: Due Process, Non-Delegation, and Antitrust Challenges. Second most importantly, it resolves the case pretty much exactly how I argued it should be resolved, both relying mostly on Due Process (there’s also an interesting Appointments Clause section at the end) and not going at all in the direction of private non-delegation. Here’s some language from the opinion:
However, despite acknowledging that “[a] dependence on the people is, no doubt, the primary control on the government,” id. at 322, the Framers never expected political accountability would be sufficient on its own to check self-interest. Id. “[E]xperience has taught mankind the necessity of auxiliary precautions.” Id. So the Framers fashioned devices that would “supply, by opposite and rival interests, the defect of better motives.” Id. But of one thing we may be sure, these “auxiliary precautions” against “ambition” that were built into our Constitution—bicameralism, presentment, judicial independence and life tenure, etc.—were designed for a government of three branches, not four. The Framers “could not have anticipated the vast growth of the administrative state,” which “with its reams of regulations would leave them rubbing their eyes.” Fed. Maritime Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 755 (2002). Those original checks on self-interest, custom-fitted for legislators, presidents, and judges, loosely drape administrators like outsized hand-me-downs.Indeed, government’s increasing reliance on public-private partnerships portends an even more ill-fitting accommodation between the exercise of regulatory power and concerns about fairness and accountability. Curbing the misuse of public power was the aim of the Magna Carta, and the Supreme Court has consistently concluded the delegation of coercive power to private parties can raise similar due process concerns. See Eubank v. City of Richmond, 226 U.S. 137 (1912); City of Eastlake v. Forest City Enters., Inc., 426 U.S. 668, 677–78 (1976); see also Silverman v. Barry, 727 F.2d 1121, 1126 (D.C. Cir. 1984). Wherever Amtrak may fall along the spectrum between public accountability and private self-interest, the ability—if it exists—to co-opt the state’s coercive power to impose a disadvantageous regulatory regime on its market competitors would be problematic. See, e.g., Alexander Volokh,The New Private-Regulation Skepticism: Due Process, Non-Delegation, and Antitrust Challenges, 37 Harv. J. L. & Pub. Pol’y 931 (2004).For these reasons, Carter Coal, not Association of National Advertisers, dictates our answer to this constitutional conundrum. We conclude, as did the Supreme Court in 1936, that the due process of law is violated when a self-interested entity is “intrusted with the power to regulate the business . . . of a competitor.” Carter Coal, 298 U.S. at 311. “[A] statute whichattempts to confer such power undertakes an intolerable and unconstitutional interference with personal liberty and private property” and transgresses “the very nature of [governmental function].” Id.
Judge Brown adopts my reading of Carter v. Carter Coal (1936), a turnabout from the previous opinion’s reading of the opinion. (Much better than the Supreme Court, which entirely ignored my amicus briefs because they resolved the case on a different ground.) I’m glad the D.C. Circuit got the reasoning and result right!