The DC Circuit issued a major separation of powers ruling today in Ass’n of American Railroads v. DOT. The main part of the opinion adopts a view of the non-delegation doctrine that I explained and relied on as part of the argument in my article Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution, 50 Duke L.J. 17 (2000), so I’m glad about that–at least in principle; whether these facts justified invocation of the doctrine I leave for others to decide. The legal issue was whether in addition to the well-known and now rather (but not utterly) toothless non-delegation doctrine that limits the breadth and discretion that Congress might give a federal agency, there is a parallel doctrine, rooted in the Due Process Clause and in the Carter Coal case, that prevents Congress from giving public regulatory power to self-interested parties who might then wield it against their competitors.
To reach that doctrinal point, the panel (Judge Brown and Senior Judges Sentelle and Williams), had to decide that Amtrak is not a governmental body for Due Process non-delegation purposes. I’m not so sure about that given the previous decisions of the Supreme Court relating to Amtrak, which have treated it as governmental for other purposes.
I have rather more serious doubts about the panel’s alternate holding that the arbitrator who could have been appointed to settle disputes between Amtrak and the plaintiff railroad would have been an Officer of the United States, and not an inferior officer. There are two issues here, both en banc and cert bait. First, there’s the question of ripeness. The panel argues that this is a structural violation, and that even the threat of an improperly appointed decision-maker down the road so taints the process that it must be thrown out before it is even invoked. That is plausible, but not compelling. More difficult to swallow is the method by which the panel decided that the official in question was not inferior but a full Officer. Suffice it to say that the panel got there from what amount to first principles, a process that (too conveniently) ignored the two major modern Supreme Court cases on the topic. If those cases, Morrison v. Olson and Free Enterprise Fund v. PCAOB had not existed, the panel’s opinion might be hailed as a model of clarity and simplicity. As it neither cites nor, I would argue, much follows them, I think the case for further proceedings may be strong.