Whether and Why Delegations of Government Power to Private Actors Are Problematic: The Court May Take Up the Nondelegation Doctrine in DOT v. Association of American Railroads

Posted in: Constitutional Law

Among the interesting U.S. Supreme Court cases this fall is U.S. Department of Transportation v. Association of American Railroads, to be argued in about a month, involving the so-called “nondelegation” doctrine—the idea that Congress cannot lawfully delegate or cede legislative powers to other institutions or actors. If the Court ends up relying on some form of a nondelegation principle in striking down the federal statute at issue, the case would break important new ground.

Background on the Nondelegation Concept

The nondelegation idea gets fought over most often in the context of statutes that confers very broad—arguably overly broad—power to the executive branch. As I and other scholars have written, under the Necessary and Proper Clause of the Constitution, each constitutionally granted congressional power “implies a power to create authority under it sufficient to effect its purposes.” But for over 150 years, the Court’s decisions have been sprinkled with categorical statements that Congress may not relinquish any of its powers to enact legislation through grants to federal administrators. The first Justice Harlan’s statement of this nondelegation doctrine in Field v. Clark is typical: “That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.”

The Supreme Court has twice struck down federal legislation as having improperly delegated legislative power to the President, but both of these cases are more than 70 years old, and came from a Court that was known for its systematically ungenerous attitude towards congressional legislation. Since 1935, the Court has not invalidated a single congressional delegation of legislative authority to an administrative agency or the President, even though many grants of authority that have been upheld are arguably broader than those struck down in 1935. In 1974, when Justice William Douglas’s majority opinion in one case construed the fee-setting authority of a federal agency narrowly so as to avoid nondelegation problems, Justice Thurgood Marshall wrote:

The notion that the Constitution confines the power of Congress to delegate authority to administrative agencies, which was briefly in vogue in the 1930’s, has been virtually abandoned by the Court for all practical purposes . . . The doctrine is surely as moribund as the substantive due process approach of the same era—for which the Court is fond of writing an obituary—if not more so.

The explanation for this judicial hesitance to intervene is easy to see: almost all laws create some significant enforcement discretion in the executive branch, and drawing a principled line between allowable standard-guided authorizations of executive power, on the one hand, and impermissible standardless delegations to the executive branch, on the other, is well-nigh impossible for courts to do. As a result, the Court simply said that Congress must lay down some “intelligible principle” by which the executive branch can determine how to enforce a law, and it has found every law that has come before it to have at least one such “intelligible principle.”

The Railroad Case Currently Before the Court

The case pending before the Justices involves a related, but arguably distinct, kind of nondelegation problem: delegation of lawmaking power by Congress to a private actor. Although the facts of the case are complex, in basic terms the statute under challenge works as follows: The Federal Railroad Administration (FRA), a federal agency that regulates railroads, is directed to work with Amtrak—a complicated hybrid entity that partakes of some private characteristics and some public features—to come up with some performance standards for Amtrak. If Amtrak falls too far short of meeting these standards, another federal agency is directed to investigate whether other railroads—whose rail lines are used by Amtrak—are not giving Amtrak sufficient access to the railways to permit Amtrak to perform better. So far, so good. The potential problem? If the FRA and Amtrak can’t agree on performance standards to be adopted, the FRA doesn’t have the power to override Amtrak’s resistance. Amtrak, in effect, has at least a temporary veto over the FRA’s proposals. In cases of such impasse, the FRA is limited to submitting the matter to an arbitrator, who then gets to decide which standards to adopt. And the statute by its terms doesn’t make clear whether the arbitrator must be a public official or institution, as opposed to a private actor.

Based on this statutory scheme, non-Amtrak railroads brought a challenge alleging that the statute gives private-sector entities (Amtrak and the arbitrator) a right to veto and determine the content of regulation of the railroad industry, including regulation of Amtrak’s competitors. Conferral of this power, the challengers argued, constitutes an impermissible delegation of federal lawmaking powers to private parties. The U.S. Court of Appeals for the D.C. Circuit agreed, calling the statute “legislative delegation in it most obnoxious form,” and observing that delegations to private actors create difficulties that “are even more prevalent” than those raised by delegations to the executive branch. Indeed, the D.C. Circuit observed that “even an intelligible principle cannot rescue a statute empowering private parties to wield regulatory authority.”

Resolving the Case Without Breaking New Nondelegation Ground

The Court may (indeed should) be able to dispose of this case without engaging a fundamental inquiry into the nondelegation doctrine as it applies to private actors. The Court could easily find Amtrak to be a public entity, in which case, at worst, the statute confers power in multiple federal executive agencies rather than to private entities, and (under the intelligible principle idea) the government would win.

The Court could also reasonably hold that the performance standards at issue here do not constitute lawmaking or regulation in any meaningful sense, since they are used—at most—to initiate investigations into whether non-Amtrak railroads have been violating federal law; the performance standards do not themselves apply to any other railroads. And quite often federal investigation of wrongdoing is triggered by private actors, so Amtrak’s role in devising standards that are used to help decide whether investigation of potential illegality is warranted should be unproblematic.

Or the Court might hold the outside arbitrator who resolves disputes between Amtrak and the FRA must be another federal governmental entity, such that private actors (even if Amtrak is deemed a private entity) do not in fact control or have a veto over the formulation of the standards. And many earlier cases make clear that mere involvement or input by private parties in the regulatory process does not, absent a private-party veto over proposed regulation, create delegation problems. Indeed, if the Court thinks a nondelegation problem were otherwise created by Amtrak’s role in the standard-setting process, and that the inclusion of a government arbitrator as a tiebreaker between Amtrak and the FRA would solve the problem, the Court would almost have to read the (ambiguous) statutory references to the arbitrator to mean government arbitrator, because the Court is ordinarily supposed to read ambiguous statutes so as to avoid, rather than create, constitutional questions.

But should the Court, for one reason or another, reach the core of the nondelegation claim, it will have to decide whether the D.C. Circuit is correct that alleged delegations to private parties cannot be cured by intelligible principles, and that such delegations constitute the most serious offense to the nondelegation norm. On these big questions, I am not at all sure the D.C. Circuit got it completely right. To see why, we must first look at where the nondelegation doctrine comes from. (Interested readers can consult earlier and more elaborate work I’ve published in the Vanderbilt Law Review, on which some of the ideas explained below are built.)

Background on the Nondelegation Idea Itself

The nondelegation doctrine is said to have both textual and theoretical underpinnings. Textually, Article I, Section 1 of the Constitution provides that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives” (emphasis added). The theoretical justifications of the nondelegation doctrine stem from, as Professor Laurence Tribe has observed, “implicit constitutional requirements of consensual government under law.” As Tribe has explained, American political theory finds legitimacy of government in the “supposed consent of the governed.” This notion of consent presupposes the possibility of tracing governmental exercise of power to a choice made by a “representative” branch that is “politically and legally responsible” to the People. Thus, the valid exercise of a congressionally created power depends upon the prior “adoption of a declared policy by Congress and its definition of the circumstances in which its command is to be effective . . . .”

Both the textual and theoretical justifications for a nondelegation principle are open to question. First, it is not clear why the term “vested” in Article I means nondelegable. After all, Article II provides that “[t]he executive Power shall be vested in a President of the United States of America,” yet no one doubts that the President may transfer executive authority to his underlings in the Executive Branch. Moving from text to theory, why does the “traceability” requirement foreclose delegation? Why can’t we “trace” congressional delegations to the President back to Congress and hold it accountable accordingly? After all, as I just observed, the President delegates executive authority to unelected underlings, and yet we seem to believe that his accountability suffices under American democratic theory. Nor did “accountability” prohibit the People of the United States from delegating some of their sovereign power of self-determination to the federal government by ratifying the Constitution. The fact that the People have given temporary authority to federal institutions to govern on their behalf does not, under American democratic theory, mean that sovereignty has been “divested” from the People and permissibly delegated to the government.

Some might respond to my analogies by pointing out that the People are free to reclaim the power they have given to federal institutions through constitutional amendment, and that the President is free to reclaim authority he has given to his underlings at will. This is all true enough, but it suggests that delegations of power are not problematic per se, but that what might be driving at least part of the nondelegation concern is the ability (or inability) to reclaim power once delegated. This possibility is supported by seminal work done at the beginning of last century by Professors Patrick W. Duff and Horace E. Whiteside. These scholars attempted to uncover the origins of the Latin nondelegation maxim, “delegata potestas non potest delegari,” which most people understand to mean “delegated power may not be redelegated.” Their groundbreaking historical research established that the earliest forms of the common law agency nondelegation maxim—thought by many to explain much of the American constitutional nondelegation concern—were phrased somewhat differently: Delegated authority cannot “be so delegated, that the primary (or regulating) power does not remain with the King himself” (emphasis added). As Professors Duff and Whiteside conclude, the concern is that the “King’s power not be diminished by its delegation to others.” This reformulation focuses attention on one key aspect of the delegation problem: that delegation is more problematic when it is harder to reclaim.

This perspective would suggest that delegations to private actors are in some ways less problematic than delegations to the President. When Congress tries to reclaim delegations to the President, the President (who might be enjoying the delegation) can attempt to veto the proposed repeal law, requiring a supermajority of both houses to overcome. By contrast, if Congress doesn’t like the way Amtrak (if Amtrak be a private entity) is obstructing federal regulation, it can amend the statute to dilute or eliminate Amtrak’s involvement. And unlike the executive branch headed by the President, Amtrak (notwithstanding its political clout) cannot formally veto a subsequent reclamation attempt by Congress.

There are, of course, some ways in which delegations to private actors raise distinct constitutional problems that must be taken into account. Private actors (unlike the executive branch) have virtually no public accountability, and Congress may be too busy to address their misdeeds by repealing legislation. Moreover, and related, regulation in the hands of private actors often raises profound conflict-of-interest and anti-competition problems, with some market participants improperly empowered to make rules governing competitors. But these problems can be addressed without resort to the nondelegation problem; if private actors are wielding government power in ways that are unfair to other private actors, the Due Process and Equal Protection Clauses of the Constitution are the appropriate vehicles. Why might, say, due process be better than the nondelegation doctrine for these purposes?

One reason is that states have nondelegation doctrines that often mirror the federal approach. Indeed, state constitutions usually have the same kind of text (e.g., all legislative power is vested in a legislature and all executive power is vested in a governor) and theory as the federal Constitution, giving rise to doctrine substantially similar to federal law. When we think about application of nondelegation ideas at the state level, we see that due process review, which invokes an explicit balancing of interests, is the right kind of contextual approach to discern problematic delegations (such as giving General Motors a right to regulate car safety standards for its competitors, to use one of the D.C. Circuit’s examples) from unproblematic delegations (such as a minister being empowered to facilitate a civil marriage). (Indeed, even if the Amtrak case really does involve delegation to a private party, it is not clear to me that such a delegation raises major conflict-of-interest or anti-competition concerns – those questions would have to be looked at more carefully.) If we use an uncompromising nondelegation doctrine instead of due process, the system would lack the flexibility to distinguish true problems—where delegation creates harm to the interests of third-parties—from formalistic ones—where regulatory or implementation power may technically be performed by private actors, but in settings where such privatization does no real harm.

So I hope that, whatever the Court does in the Amtrak case, the Justices do not embrace an overly broad rejection of all delegations to private actors. And if the Court has problems with the empowerment of Amtrak, I hope the Justices explain how Amtrak’s involvement is unfair to other participants, and that they limit their holding to those kinds of situations.