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Department of Transportation v. Association of American Railroads: Amtrak is Governmental for Nondelegation Purposes

By Jonathan Keim | March 9th, 2015

This morning the Supreme Court ruled for the government 9-0 in in Department of Transportation v. Association of American Railroads, an important case about the nondelegation doctrine. Justice Kennedy wrote the opinion for the Court, with Justice Alito writing a concurring opinion and Justice Thomas concurring in the judgment. I previously summarized the case back in December after oral argument, noting that the justices didn’t let much slip and cautiously suggesting that some of the justices were leaning towards the railroads’ position, at least on the substantive due process issue.

If so, they never had the chance to apply so-called “substantive due process.” The Court’s opinion, with Justice Kennedy writing, concluded that Amtrak is a governmental entity for the purposes of nondelegation analysis, thus short-circuiting application of Carter v. Carter Coal Co. (1936), a New Deal-era substantive due process case that forbids delegations of governmental power to private parties.

The issue squarely before the Court was whether Congress violated the nondelegation doctrine by giving Amtrak, a federally-chartered for-profit corporation, the power to develop measurement criteria that would end up regulating freight railroads who had to allow Amtrak to use their track. The railroads had alleged that such power violated the nondelegation doctrine under Carter Coal and that such a delegation would also violate the Due Process Clause, also under Carter Coal.

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