Josh Blackman has this analysis of the D.C. Circuit's decision on remand in Association of American Railroads v. U.S. Department of Transportation. Here is the introduction:
Last March, the Supreme Court decided Department of Transportation v. Association of American Railroads. The case raised all sorts of constitutional challenges to how Amtrak can set “metrics and standards” that affect its competitors. Writing for eight Justices, Justice Kennedy found that Amtrak was a governmental entity, and remanded to the D.C. Circuit whether the “metrics and standards” violate the separation of powers and the appointments clause. Justice Alito issued a vigorous opinion raising several other constitutional questions, including whether there is an appointments clause violation, the non-delegation doctrine, and other admin-law abuses. Justice Thomas’s concurring opinion went the full Hamburger, and would have voted to reconsider the development of administration law since the Pope annulled Magna Carta.
On remand from the Supreme Court, a D.C. Circuit panel of Judges Brown, Sentelle, and Williams ruled against Amtrak–in an absolutely fascinating opinion. The Court finds not only a violation of the appointments clause–following Justice Alito’s lead–but also finds a due process violation under the precedent of Carter v. Carter Coal. Judge Brown’s opinion–which is almost certainly going to be subject to an en banc petition–is worthy of a careful study.
And some of the analysis on the due process holding:
To resolve this case, Judge Brown turns back to a pre-1937 precedent, Carter v. Carter Coal.
The abstract legal question at the heart of this case is whether it violates due process for Congress to give a self- interested entity rulemaking authority over its competitors. The Supreme Court has confronted the question only once. See Carter v. Carter Coal Co., 298 U.S 238 (1936).
In case you were wondering, the due-process component of Carter v. Carter Coal was never overturned by the Supreme Court. As we learned in NFIB v. Sebelius, Bailey v. Drexel Furniture and other pre-switch-in-time cases–no matter what the professoriate may say– are still on the books. (I actually researched Carter v. Carter Coal for the proposition of shareholder derivative standing, so was familiar of its ongoing validity).
In a sentence that must make the blood boil of all post-New Dealers, Judge Brown writes:
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.
RELATED: Michel Greve has further thoughts on the decision here, including this:
The Federal Reserve is a market participant. And it regulates. Is Janet Yellen constitutional? That in terrorem example aside: there are lots of government agencies with both revenue-maximizing mandates and regulatory powers; and those agencies come in a dizzying array of shapes and forms. So, how far does this go?
Posted at 6:42 AM