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Sasha Volokh on Court Decision Striking Down Delegation of Regulatory Authority to Amtrak

Leonard Gilroy
August 1, 2013, 7:00am

Sasha Volokh has a new article on Reason.org discussing a recent decision by the D.C. Circuit Court striking down a delegation of authority to Amtrak under the Passenger Rail Investment and Improvement Act of 2008, finding that a section of the Act granted an unconstitutional delegation of regulatory power to a private party. Wait...isn't Amtrak a heavily-subsidized, government-chartered corporation—and thus public in nature? The answer, as Volokh explains, is murky.

Here's the intro:

On July 2, 2013, in Ass’n of American Railroads v. DOT, the D.C. Circuit struck down a delegation of authority to Amtrak in § 207 of the Passenger Rail Investment and Improvement Act of 2008, holding that the statute unconstitutionally delegated regulatory power to a private party. This is a significant case for several reasons.

First, it’s potentially significant in terms of constitutional doctrine. In holding that private delegations of regulatory authority are illegitimate, the case seems to go against the conventional wisdom, which is that there is no special doctrine for private delegations by Congress: the Nondelegation Doctrine applies equally to public and private recipients of delegated congressional authority by Congress. Moreover, this conventional wisdom is probably right. The D.C. Circuit’s decision may yet be correct under the Due Process Clause, but the D.C. Circuit deliberately refused to choose whether this delegation implicated the Nondelegation Doctrine or the Due Process Clause.

Second, it's potentially significant in terms of its real-world effect on delegations to private parties, though much depends on precisely why the delegation is unconstitutional, which the court didn't explain well. If the decision rests on the Nondelegation Doctrine, it only affects federal delegations; but if it rests on the Due Process Clause, it also affects the much broader set of state delegations.

Third, in holding, based on a multi-factor analysis, that Amtrak is a private actor, it provides yet another example of how the public-private distinction is fuzzy, and an entity that is public for one reason might be private for another.

Read the rest of the article here. And for more, all of Volokh's recent legal analyses written for Reason Foundation on an array of privatization-related topics are archived here.


Leonard Gilroy is Director of Government Reform


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