DEPARTMENT OF TRANSPORTATION ET AL. v. ASSOCIATION OF AMERICAN RAILROADS
No. 13-1080
SUPREME COURT OF THE UNITED STATES
Decided March 9, 2015
575 U. S. ____ (2015)
Argued December 8, 2014
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DEPARTMENT OF TRANSPORTATION ET AL. v. ASSOCIATION OF AMERICAN RAILROADS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 13-1080. Argued December 8, 2014—Decided March 9, 2015
In 1970, Congress created the National Railroad Passenger Corporation (Amtrak). Congress has given Amtrak priority to use track systems owned by the freight railroads for passenger rail travel, at rates agreed to by the parties or, in case of a dispute, set by the Surface Transportation Board. And in 2008, Congress gave Amtrak and the Federal Railroad Administration (FRA) joint authority to issue “metrics and standards” addressing the performance and scheduling of passenger railroad services, see
Held: For purposes of determining the validity of the metrics and standards, Amtrak is a governmental entity. Pp. 6–12.
(a) In concluding otherwise, the Court of Appeals relied on the statutory command that Amtrak “is not a department, agency, or instrumentality of the United States Government,”
(b) Respondent‘s reliance on congressional statements about Amtrak‘s status is misplaced. Lebron v. National Railroad Passenger Corp., 513 U. S. 374, teaches that, for purposes of Amtrak‘s status as a federal actor or instrumentality under the Constitution, the practical reality of federal control and supervision prevails over Congress’ disclaimer of Amtrak‘s governmental status. Treating Amtrak as governmental for these purposes, moreover, is not an unbridled grant of authority to an unaccountable actor, for the political branches created Amtrak, control its Board, define its mission, specify many of its day-to-day operations, have imposed substantial transparency and accountability mechanisms, and, for all practical purposes, set and supervise its annual budget. Pp. 10–11.
(c) The Court of Appeals may address in the first instance any properly preserved issues respecting the lawfulness of the metrics and standards that may remain in this case, including questions implicating the Constitution‘s structural separation of powers and the Appointments Clause. Pp. 11–12.
721 F. 3d 666, vacated and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 13-1080
DEPARTMENT OF TRANSPORTATION, ET AL., PETITIONERS v. ASSOCIATION OF AMERICAN RAILROADS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[March 9, 2015]
JUSTICE KENNEDY delivered the opinion of the Court.
In 1970, Congress created the National Railroad Passenger Corporation, most often known as Amtrak. Later, Congress granted Amtrak and the Federal Railroad Administration (FRA) joint authority to issue “metrics and standards” that address the performance and scheduling of passenger railroad services. Alleging that the metrics and standards have substantial and adverse effects upon its members’ freight services, respondent—the Association of American Railroads—filed this suit to challenge their validity. The defendants below, petitioners here, are the Department of Transportation, the FRA, and two individuals sued in their official capacity.
Respondent alleges the metrics and standards must be invalidated on the ground that Amtrak is a private entity and it was therefore unconstitutional for Congress to allow and direct it to exercise joint authority in their issuance. This argument rests on the Fifth Amendment Due Process Clause and the constitutional provisions regarding separation of powers. The District Court rejected both of re
Having granted the petition for writ of certiorari, 573 U. S. ___ (2014), this Court now holds that, for purposes of determining the validity of the metrics and standards, Amtrak is a governmental entity. Although Amtrak‘s actions here were governmental, substantial questions respecting the lawfulness of the metrics and standards—including questions implicating the Constitution‘s structural separation of powers and the Appointments Clause,
I
A
Amtrak is a corporation established and authorized by a detailed federal statute enacted by Congress for no less a purpose than to preserve passenger services and routes on our Nation‘s railroads. See Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, 383–384 (1995); National Railroad Passenger Corporation v. Atchison, T. & S. F. R. Co., 470 U. S. 451, 453–457 (1985); see also Rail Passenger Service Act of 1970, 84 Stat. 1328. Congress recognized that Amtrak, of necessity, must rely for most of its operations on track systems owned by the freight railroads. So, as a condition of relief from their common-carrier duties, Congress required freight railroads to allow Amtrak to use their tracks and facilities at rates agreed to by the parties—or in the event of disagreement to be set by the Interstate Commerce Commission (ICC). See
The metrics and standards at issue here are the result of a further and more recent enactment. Concerned by poor service, unreliability, and delays resulting from freight traffic congestion, Congress passed the Passenger Rail Investment and Improvement Act (PRIIA) in 2008. See 122 Stat. 4907. Section 207(a) of the PRIIA provides for the creation of the metrics and standards:
“Within 180 days after the date of enactment of this Act, the Federal Railroad Administration and Amtrak shall jointly, in consultation with the Surface Transportation Board, rail carriers over whose rail lines Amtrak trains operate, States, Amtrak employees, nonprofit employee organizations representing Amtrak employees, and groups representing Amtrak passengers, as appropriate, develop new or improve existing metrics and minimum standards for measuring the performance and service quality of intercity passenger train operations, including cost recovery, on-time performance and minutes of delay, ridership, on-board services, stations, facilities, equipment, and other services.” Id., at 4916.
Section 207(d) of the PRIIA further provides:
“If the development of the metrics and standards is not completed within the 180-day period required by subsection (a), any party involved in the development of those standards may petition the Surface Transportation Board to appoint an arbitrator to assist the parties in resolving their disputes through binding arbitration.” Id., at 4917.
Under §213(a) of the PRIIA, the metrics and standards also may play a role in prompting investigations by the STB and in subsequent enforcement actions. For instance, “[i]f the on-time performance of any intercity passenger train averages less than 80 percent for any 2 consecutive calendar quarters,” the STB may initiate an investigation “to determine whether and to what extent delays . . . are due to causes that could reasonably be addressed . . . by Amtrak or other intercity passenger rail operators.” Id., at 4925–4926. While conducting an investigation under §213(a), the STB “has authority to review the accuracy of the train performance data and the extent to which scheduling and congestion contribute to delays” and shall “obtain information from all parties involved and identify reasonable measures and make recommendations to improve the service, quality, and on-time performance of the train.” Id., at 4926. Following an investigation, the STB may award damages if it “determines that delays or failures to achieve minimum standards . . . are attributable to a rail carrier‘s failure to provide preference to Amtrak over freight transportation.” Ibid. The STB is further empow
B
In March 2009, Amtrak and the FRA published a notice in the Federal Register inviting comments on a draft version of the metrics and standards. App. 75–76. The final version of the metrics and standards was issued jointly by Amtrak and the FRA in May 2010. Id., at 129–144. The metrics and standards address, among other matters, Amtrak‘s financial performance, its scores on consumer satisfaction surveys, and the percentage of passenger-trips to and from underserved communities.
Of most importance for this case, the metrics and standards also address Amtrak‘s on-time performance and train delays caused by host railroads. The standards associated with the on-time performance metrics require on-time performance by Amtrak trains at least 80% to 95% of the time for each route, depending on the route and year. Id., at 133–135. With respect to “host-responsible delays“—that is to say, delays attributed to the railroads along which Amtrak trains travel—the metrics and standards provide that “[d]elays must not be more than 900 minutes per 10,000 Train-Miles.” Id., at 138. Amtrak conductors determine responsibility for particular delays. Ibid., n. 23.
In the District Court for the District of Columbia, respondent alleged injury to its members from being required to modify their rail operations, which mostly involve freight traffic, to satisfy the metrics and standards. Respondent claimed that §207 “violates the nondelegation doctrine and the separation of powers principle by placing legislative and rulemaking authority in the hands of a private entity [Amtrak] that participates in the very industry it is supposed to regulate.” Id., at 176–177, Complaint ¶51. Respondent also asserted that §207 violates
The District Court granted summary judgment to petitioners on both claims. See 865 F. Supp. 2d 22 (DC 2012). Without deciding whether Amtrak must be deemed private or governmental, it rejected respondent‘s nondelegation argument on the ground that the FRA, the STB, and the political branches exercised sufficient control over promulgation and enforcement of the metrics and standards so that §207 is constitutional. See id., at 35.
The Court of Appeals for the District of Columbia Circuit reversed the judgment of the District Court as to the nondelegation and separation of powers claim, reasoning in central part that because “Amtrak is a private corporation with respect to Congress‘s power to delegate . . . authority,” it cannot constitutionally be granted the “regulatory power prescribed in §207.” 721 F. 3d 666, 677 (2013). The Court of Appeals did not reach respondent‘s due process claim. See ibid.
II
In holding that Congress may not delegate to Amtrak the joint authority to issue the metrics and standards—authority it described as “regulatory power,” ibid.—the Court of Appeals concluded Amtrak is a private entity for purposes of determining its status when considering the constitutionality of its actions in the instant dispute. That court‘s analysis treated as controlling Congress’ statutory command that Amtrak “‘is not a department, agency, or instrumentality of the United States Government.‘” Id., at 675 (quoting
That premise, however, was erroneous. Congressional pronouncements, though instructive as to matters within Congress’ authority to address, see, e.g., United States ex rel. Totten v. Bombardier Corp., 380 F. 3d 488, 491–492 (CADC 2004) (Roberts, J.), are not dispositive of Amtrak‘s status as a governmental entity for purposes of separation of powers analysis under the Constitution. And an independent inquiry into Amtrak‘s status under the Constitution reveals the Court of Appeals’ premise was flawed.
It is appropriate to begin the analysis with Amtrak‘s ownership and corporate structure. The Secretary of Transportation holds all of Amtrak‘s preferred stock and most of its common stock. Amtrak‘s Board of Directors is composed of nine members, one of whom is the Secretary of Transportation. Seven other Board members are appointed by the President and confirmed by the Senate.
In addition to controlling Amtrak‘s stock and Board of Directors the political branches exercise substantial, statutorily mandated supervision over Amtrak‘s priorities and operations. Amtrak must submit numerous annual reports to Congress and the President, detailing such information as route-specific ridership and on-time performance.
It is significant that, rather than advancing its own private economic interests, Amtrak is required to pursue numerous, additional goals defined by statute. To take a few examples: Amtrak must “provide efficient and effective intercity passenger rail mobility,”
In addition to directing Amtrak to serve these broad public objectives, Congress has mandated certain aspects of Amtrak‘s day-to-day operations. Amtrak must maintain a route between Louisiana and Florida.
Finally, Amtrak is also dependent on federal financial support. In its first 43 years of operation, Amtrak has received more than $41 billion in federal subsidies. In recent years these subsidies have exceeded $1 billion annually. See Brief for Petitioners 5, and n. 2, 46.
Given the combination of these unique features and its significant ties to the Government, Amtrak is not an autonomous private enterprise. Among other important considerations, its priorities, operations, and decisions are
Respondent urges that Amtrak cannot be deemed a governmental entity in this respect. Like the Court of Appeals, it relies principally on the statutory directives that Amtrak “shall be operated and managed as a for profit corporation” and “is not a department, agency, or instrumentality of the United States Government.”
On that point this Court‘s decision in Lebron v. National Railroad Passenger Corp., 513 U. S. 374 (1995), provides necessary instruction. In Lebron, Amtrak prohibited an artist from installing a politically controversial display in New York City‘s Penn Station. The artist sued Amtrak, alleging a violation of his First Amendment rights. In response Amtrak asserted that it was not a governmental entity, explaining that “its charter‘s disclaimer of agency status prevent[ed] it from being considered a Government entity.” Id., at 392. The Court rejected this contention, holding “it is not for Congress to make the final determination of Amtrak‘s status as a Government entity for purposes of determining the constitutional rights of citizens affected by its actions.” Ibid. To hold otherwise
Lebron teaches that, for purposes of Amtrak‘s status as a federal actor or instrumentality under the Constitution, the practical reality of federal control and supervision prevails over Congress’ disclaimer of Amtrak‘s governmental status. Lebron involved a First Amendment question, while in this case the challenge is to Amtrak‘s joint authority to issue the metrics and standards. But “[t]he structural principles secured by the separation of powers protect the individual as well.” Bond v. United States, 564 U. S. 211, 222 (2011) (slip op., at 10). Treating Amtrak as governmental for these purposes, moreover, is not an unbridled grant of authority to an unaccountable actor. The political branches created Amtrak, control its Board, define its mission, specify many of its day-to-day operations, have imposed substantial transparency and accountability mechanisms, and, for all practical purposes, set and supervise its annual budget. Accordingly, the Court holds that Amtrak is a governmental entity, not a private one, for purposes of determining the constitutional issues presented in this case.
III
Because the Court of Appeals’ decision was based on the flawed premise that Amtrak should be treated as a private
The judgment of the Court of Appeals for the District of Columbia Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
SUPREME COURT OF THE UNITED STATES
No. 13-1080
DEPARTMENT OF TRANSPORTATION, ET AL., PETITIONERS v. ASSOCIATION OF AMERICAN RAILROADS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[March 9, 2015]
JUSTICE ALITO, concurring.
I entirely agree with the Court that Amtrak is “a federal actor or instrumentality,” as far as the Constitution is concerned. Ante, at 11. “Amtrak was created by the Government, is controlled by the Government, and operates for the Government‘s benefit.” Ante, at 10. The Government even “specif[ies] many of its day-to-day operations” and “for all practical purposes, set[s] and supervise[s] its annual budget.” Ante, at 11. The District of Columbia Circuit understandably heeded
I
This case, on its face, may seem to involve technical issues, but in discussing trains, tracks, metrics, and standards, a vital constitutional principle must not be forgotten: Liberty requires accountability.
When citizens cannot readily identify the source of legislation or regulation that affects their lives, Govern-
Recognition that Amtrak is part of the Federal Government raises a host of constitutional questions.
II
I begin with something that may seem mundane on its face but that has a significant relationship to the principle of accountability. Under the Constitution, all officers of the United States must take an oath or affirmation to support the Constitution and must receive a commission. See
Here, respondent tells the Court that “Amtrak‘s board members do not take an oath of office to uphold the Constitution, as do Article II officers vested with rulemaking authority.” Brief for Respondent 47. The Government says not a word in response. Perhaps there is an answer. The rule, however, is clear. Because Amtrak is the Government, ante, at 11, those who run it need to satisfy basic constitutional requirements.
III
I turn next to the Passenger Rail Investment and Improvement Act of 2008‘s (PRIIA) arbitration provision. 122 Stat. 4907. Section 207(a) of the PRIIA provides that “the Federal Railroad Administration [(FRA)] and Amtrak shall jointly . . . develop new or improve existing metrics and minimum standards for measuring the performance and service quality of intercity passenger train operations.” Id., at 4916. In addition, §207(c) commands that “[t]o the extent practicable, Amtrak and its host rail carriers shall incorporate [those] metrics and standards . . . into their access and service agreements.” Under §213(a) of the PRIIA, moreover, “the metrics and standards also may play a role in prompting investigations by the [Surface Transportation Board (STB)] and in subsequent enforcement actions.” Ante, at 4.
This scheme is obviously regulatory. Section 207 provides that Amtrak and the FRA “shall jointly” create new standards, cf. e.g.,
“As is often the case in administrative law,” moreover, “the metrics and standards lend definite regulatory force to an otherwise broad statutory mandate.” 721 F. 3d 666, 672 (CADC 2013). Here, though the nexus between regulation, statutory mandate, and penalty is not direct (for, as the Government explains, there is a pre-existing requirement that railroads give preference to Amtrak, see Brief for Petitioners 31–32 (citing
The language from §207 quoted thus far should raise red flags. In one statute, Congress says Amtrak is not an “agency.”
The oddity continues, however. Section 207(d) of the
Looking to Congress’ use of the word “arbitrator,” respondent argues that because the arbitrator can be a private person, this provision by itself violates the private nondelegation doctrine. The United States, for its part, urges the Court to read the term “arbitrator” to mean “public arbitrator” in the interests of constitutional avoidance.
No one disputes, however, that the arbitration provision is fair game for challenge, even though no arbitration occurred. The obvious purpose of the arbitration provision was to force Amtrak and the FRA to compromise, or else a third party would make the decision for them. The D. C. Circuit is correct that when Congress enacts a compromise-forcing mechanism, it is no good to say that the mechanism cannot be challenged because the parties compromised. See 721 F. 3d, at 674. “[S]tack[ing] the deck in favor of compromise” was the whole point. Ibid. Unsurprisingly, this Court has upheld standing to bring a separation-of-powers challenge in comparable circumstances. See Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252, 264–265 (1991) (“[T]his ‘personal injury’ to respondents is ‘fairly traceable’ to the Board of Review‘s veto power because knowledge that the master plan was subject to the veto power undoubtedly influenced MWAA‘s Board of Directors” (emphasis added)); see also Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 512, n. 12 (2010) (“We cannot assume . . . that
As to the merits of this arbitration provision, I agree with the parties: If the arbitrator can be a private person, this law is unconstitutional. Even the United States accepts that Congress “cannot delegate regulatory authority to a private entity.” 721 F. 3d, at 670. Indeed, Congress, vested with enumerated “legislative Powers,”
The principle that Congress cannot delegate away its vested powers exists to protect liberty. Our Constitution, by careful design, prescribes a process for making law, and within that process there are many accountability checkpoints. See INS v. Chadha, 462 U. S. 919, 959 (1983). It would dash the whole scheme if Congress could give its power away to an entity that is not constrained by those checkpoints. The Constitution‘s deliberative process was viewed by the Framers as a valuable feature, see, e.g., Manning, Lawmaking Made Easy, 10 Green Bag 2d 202 (2007) (“[B]icameralism and presentment make lawmaking difficult by design” (citing, inter alia, The Federalist No. 62, p. 378 (J. Madison), and No. 63, at 443-444 (A. Hamilton))), not something to be lamented and evaded.
Of course, this Court has “almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 474-475 (2001) (quoting
When it comes to private entities, however, there is not even a fig leaf of constitutional justification. Private entities are not vested with “legislative Powers.”
For these reasons, it is hard to imagine how delegating “binding” tie-breaking authority to a private arbitrator to resolve a dispute between Amtrak and the FRA could be constitutional. No private arbitrator can promulgate
As I read the Government‘s briefing, it does not dispute any of this (other than my characterization of the PRIIA as regulatory, which it surely is). Rather than trying to defend a private arbitrator, the Government argues that the Court, for reasons of constitutional avoidance, should read the word “arbitrator” to mean “public arbitrator.” The Government‘s argument, however, lurches into a new problem: Constitutional avoidance works only if the statute is susceptible to an alternative reading and that such an alternative reading would itself be constitutional.
Here, the Government‘s argument that the word “arbitrator” does not mean “private arbitrator” is in some tension with the ordinary meaning of the word. Although Government arbitrators are not unheard of, we usually think of arbitration as a form of “private dispute resolution.” See, e.g., Stolt-Nielsen S. A. v. AnimalFeeds Int‘l Corp., 559 U. S. 662, 685 (2010).
Likewise, the appointment of a public arbitrator here would raise serious questions under the Appointments Clause. Unless an “inferior Office[r]” is at issue,
Here, even under the Government‘s public-arbitrator theory, it looks like the arbitrator would be making law without supervision—again, it is “binding arbitration.” Nothing suggests that those words mean anything other than what they say. This means that an arbitrator could set the metrics and standards that “shall” become part of a private railroad‘s contracts with Amtrak whenever “practicable.” As to that “binding” decision, who is the supervisor? Inferior officers can do many things, but nothing final should appear in the Federal Register unless a Presidential appointee has at least signed off on it. See 75 Fed. Reg. 26839 (2010) (placing the metrics and standards in the Federal Register); Edmond, supra, at 665.
IV
Finally, the Board of Amtrak, and, in particular, Amtrak‘s president, also poses difficult constitutional problems. As the Court observes, “Amtrak‘s Board of Directors is composed of nine members, one of whom is the Secretary of Transportation. Seven other Board members are appointed by the President and confirmed by the Senate. These eight Board members, in turn, select Amtrak‘s president.” Ante, at 7 (citation omitted). In other words, unlike everyone else on the Board, Amtrak‘s
As explained above, accountability demands that principal officers be appointed by the President. See
This argument, however, is problematic. Granted, a multimember body may head an agency. See Free Enterprise Fund, supra, at 512-513. But those who head agencies must be principal officers. See Edmond, supra, at 663. It would seem to follow that because agency heads must be principal officers, every member of a multimember body heading an agency must also be a principal officer. After all, every member of a multimember body could cast the deciding vote with respect to a particular decision. One would think that anyone who has the unilateral authority to tip a final decision one way or the other cannot be an inferior officer.
The Government‘s response is tucked away in a footnote. It contends that because Amtrak‘s president serves at the pleasure of the other Board members, he is only an inferior officer. See Reply Brief for Petitioners 14, n. 6. But the Government does not argue that the president of Amtrak cannot cast tie-breaking votes. Assuming he can vote when the Board of Directors is divided, it makes no sense to think that the side with which the president agrees will demand his removal.
A “Department” may not be “subordinate to or contained within any other such component” of the Executive Branch. Free Enterprise Fund, 561 U. S., at 511. As explained above, however, in jointly creating metrics and standards, Amtrak may have to give way to an arbitrator appointed by the STB. Does that mean that Amtrak is “subordinate to” the STB? See also
*
*
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In sum, while I entirely agree with the Court that
No. 13-1080
DEPARTMENT OF TRANSPORTATION, ET AL., PETITIONERS v. ASSOCIATION OF AMERICAN RAILROADS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[March 9, 2015]
JUSTICE THOMAS, concurring in the judgment.
We have come to a strange place in our separation-of-powers jurisprudence. Confronted with a statute that authorizes a putatively private market participant to work hand-in-hand with an executive agency to craft rules that have the force and effect of law, our primary question—indeed, the primary question the parties ask us to answer—is whether that market participant is subject to an adequate measure of control by the Federal Government. We never even glance at the Constitution to see what it says about how this authority must be exercised and by whom.
I agree with the Court that the proper disposition in this case is to vacate the decision below and to remand for further consideration of respondent‘s constitutional challenge to the metrics and standards. I cannot join the majority‘s analysis, however, because it fails to fully correct the errors that require us to vacate the Court of Appeals’ decision. I write separately to describe the framework that I believe should guide our resolution of delegation challenges and to highlight serious constitutional defects in the Passenger Rail Investment and Improvement Act of 2008 (PRIIA) that are properly presented for the lower courts’ review on remand.
The Constitution does not vest the Federal Government with an undifferentiated “governmental power.” Instead, the Constitution identifies three types of governmental power and, in the Vesting Clauses, commits them to three branches of Government. Those Clauses provide that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States,”
These grants are exclusive. See Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 472 (2001) (legislative power); Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 496-497 (2010) (executive power); Stern v. Marshall, 564 U.S. ___, ___ (2011) (slip op., at 16-17) (judicial power). When the Government is called upon to perform a function that requires an exercise of legislative, executive, or judicial power, only the vested recipient of that power can perform it.
In addition to allocating power among the different branches, the Constitution identifies certain restrictions on the manner in which those powers are to be exercised.
When the Court speaks of Congress improperly delegating power, what it means is Congress’ authorizing an entity to exercise power in a manner inconsistent with the Constitution. For example, Congress improperly “delegates” legislative power when it authorizes an entity other than itself to make a determination that requires an exercise of legislative power. See Whitman, supra, at 472. It also improperly “delegates” legislative power to itself when it authorizes itself to act without bicameralism and presentment. See, e.g., INS v. Chadha, 462 U. S. 919 (1983). And Congress improperly “delegates“—or, more precisely, authorizes the exercise of, see Perez v. Mortgage Bankers Assn., post, at 22 (THOMAS, J., concurring in judgment) (noting that Congress may not “delegate” power it does not possess)—executive power when it authorizes individuals or groups outside of the President‘s control to perform a function that requires the exercise of that power. See, e.g., Free Enterprise Fund, supra.
In order to be able to adhere to the provisions of the Constitution that allocate and constrain the exercise of these powers, we must first understand their boundaries. Here, I do not purport to offer a comprehensive description of these powers. My purpose is to identify principles relevant to today‘s dispute, with an eye to offering guidance to the lower courts on remand. At issue in this case is the proper division between legislative and executive powers. An examination of the history of those powers reveals how far our modern separation-of-powers jurisprudence has departed from the original meaning of the Constitution.
II
The allocation of powers in the Constitution is absolute, Perez, post, at 5-8 (opinion of THOMAS, J.), but it does not
The function at issue here is the formulation of generally applicable rules of private conduct. Under the original understanding of the Constitution, that function requires the exercise of legislative power. By corollary, the discretion inherent in executive power does not comprehend the discretion to formulate generally applicable rules of private conduct.
A
The idea that the Executive may not formulate generally applicable rules of private conduct emerged even before
The idea has ancient roots in the concept of the “rule of law,” which has been understood since Greek and Roman times to mean that a ruler must be subject to the law in exercising his power and may not govern by will alone. M. Vile, Constitutionalism and the Separation of Powers 25 (2d ed. 1998); 2 Bracton, De Legibus et Consuetudinibus Angliae 33 (G. Woodbine ed., S. Thorne transl. 1968). The principle that a ruler must govern according to law “presupposes at least two distinct operations, the making of law, and putting it into effect.” Vile, supra, at 24. Although it was originally thought “that the rule of law was satisfied if a king made good laws and always acted according to them,” it became increasingly apparent over time that the rule of law demanded that the operations of “making” law and of “putting it into effect” be kept separate. W. Gwyn, The Meaning of the Separation of Powers 35 (1965); see also id., at 8-9. But when the King‘s power was at its height, it was still accepted that his “principal duty . . . [was], to govern his people according to law.” 1 W. Blackstone, Commentaries on the Laws of England 226 (1765) (Commentaries) (emphasis added).
An early expression of this idea in England is seen in the “constitutional” law concerning crown proclamations. Even before a more formal separation of powers came about during the English Civil War, it was generally thought that the King could not use his proclamation power to alter the rights and duties of his subjects. P. Hamburger, Is Administrative Law Unlawful? 33-34 (2014) (Hamburger). This power could be exercised by the King only in conjunction with Parliament and was exercised through statutes. Ibid.; see also M. Hale, The Prerogatives of the King 141, 171-172 (D. Yale ed. 1976). The King might participate in “the legislative power” by giving his “assent” to laws created by the “concurrence” of “lords
In 1539, King Henry VIII secured what might be called a “delegation” of the legislative power by prevailing on Parliament to pass the Act of Proclamations. Hamburger 35-36. That Act declared that the King‘s proclamations would have the force and effect of an Act of Parliament. Id., at 37. But the Act did not permit the King to deprive his subjects of their property, privileges and franchises, or their lives, except as provided by statutory or common law. Id., at 37-38. Nor did the Act permit him to invalidate “any acts, [or] common laws standing at [that] time in strength and force.” Id., at 38 (quoting An Act that Proclamations Made by the King Shall be Obeyed, 31 Hen. VIII, ch. 8, in Eng. Stat. at Large 263 (1539)).
Even this limited delegation of lawmaking power to the King was repudiated by Parliament less than a decade later. Hamburger 38. Reflecting on this period in history, David Hume would observe that, when Parliament “gave to the king‘s proclamation the same force as to a statute enacted by parliament,” it “made by one act a total subversion of the English constitution.” 3 D. Hume, The History of England from the Invasion of Julius Ceasar to the Revolution in 1688, p. 266 (1983). By the 17th century, when English scholars and jurists began to articulate a more formal theory of the separation of powers, delegations of the type afforded to King Henry VIII were all but unheard of. Hale, supra, at 172-173.
This is not to say that the Crown did not endeavor to exercise the power to make rules governing private conduct. King James I made a famous attempt, see Perez, post, at 14 (opinion of THOMAS, J.), prompting the influential jurist Chief Justice Edward Coke to write that the King could not “change any part of the common law, nor create any offence by his proclamation, which was not an
John Locke echoed this view. “[F]reedom of men under government,” he wrote, “is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it . . . and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man.” J. Locke, Second Treatise of Civil Government §22, p. 13 (J. Gough ed. 1947) (Locke) (emphasis added). It followed that this freedom required that the power to make the standing rules and the power to enforce them not lie in the same hands. See id., §143, at 72. He further concluded that “[t]he legislative c[ould not] transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it [could not] pass it over to others.” Id., §141, at 71.2
William Blackstone, in his Commentaries, likewise maintained that the English Constitution required that no subject be deprived of core private rights except in accordance with the law of the land. See 1 Commentaries 129, 134, 137-138. He defined a “law” as a generally applicable “rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.” Id., at 44 (internal quotation marks omitted). And he defined a tyrannical government as one in which “the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men,” for “wherever these two powers are united together, there can be no public liberty.” Id., at 142. Thus, although Blackstone viewed Parliament as sovereign and capable of changing the constitution, id., at 156, he thought a delegation of lawmaking power to be “disgrace[ful],” 4 id., at 424; see also Hamburger 39, n. 17.
B
These principles about the relationship between private rights and governmental power profoundly influenced the men who crafted, debated, and ratified the Constitution. The document itself and the writings surrounding it reflect a conviction that the power to make the law and the power to enforce it must be kept separate, particularly with respect to the regulation of private conduct.
The Framers’ dedication to the separation of powers has been well-documented, if only half-heartedly honored.
This devotion to the separation of powers is, in part, what supports our enduring conviction that the Vesting Clauses are exclusive and that the branch in which a power is vested may not give it up or otherwise reallocate it. The Framers were concerned not just with the starting allocation, but with the “gradual concentration of the several powers in the same department.” The Federalist No. 51, at 321 (J. Madison). It was this fear that prompted the Framers to build checks and balances into our constitutional structure, so that the branches could defend their powers on an ongoing basis. Ibid.; see also Perez, post, at 7 (opinion of THOMAS, J.).
In this sense, the founding generation did not subscribe to Blackstone‘s view of parliamentary supremacy. Parliament‘s violations of the law of the land had been a significant complaint of the American Revolution, Chapman & McConnell, supra, at 1699-1703. And experiments in legislative supremacy in the States had confirmed the idea that even the legislature must be made subject to the law. Perez, post, at 6-7 (opinion of THOMAS, J.). James Wilson explained the Constitution‘s break with the legislative supremacy model at the Pennsylvania ratification convention:
“Sir William Blackstone will tell you, that in Britain . . . the Parliament may alter the form of the govern-
ment; and that its power is absolute, without control. The idea of a constitution, limiting and superintending the operations of legislative authority, seems not to have been accurately understood in Britain. . . . “To control the power and conduct of the legislature, by an overruling constitution, was an improvement in the science and practice of government reserved to the American states.” 2 J. Elliot, Debates on the Federal Constitution 432 (2d ed. 1863); see also 4 id., at 63 (A. Maclaine) (contrasting Congress, which “is to be guided by the Constitution” and “cannot travel beyond its bounds,” with the Parliament described in Blackstone‘s Commentaries).
As an illustration of Blackstone‘s contrasting model of sovereignty, Wilson cited the Act of Proclamations, by which Parliament had delegated legislative power to King Henry VIII. 2 id., at 432 (J. Wilson); see supra, at 6.
At the center of the Framers’ dedication to the separation of powers was individual liberty. The Federalist No. 47, at 302 (J. Madison) (quoting Baron de Montesquieu for the proposition that “‘[t]here can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates‘“). This was not liberty in the sense of freedom from all constraint, but liberty as described by Locke: “to have a standing rule to live by . . . made by the legislative power,” and to be free from “the inconstant, uncertain, unknown, arbitrary will of another man.” Locke §22, at 13. At the heart of this liberty were the Lockean private rights: life, liberty, and property. If a person could be deprived of these private rights on the basis of a rule (or a will) not enacted by the legislature, then he was not truly free. See D. Currie, The Constitution in the Supreme Court: The First One Hundred Years,
This history confirms that the core of the legislative power that the Framers sought to protect from consolidation with the executive is the power to make “law” in the Blackstonian sense of generally applicable rules of private conduct.
III
Even with these sound historical principles in mind, classifying governmental power is an elusive venture. Wayman, 10 Wheat., at 43; The Federalist No. 37, at 228 (J. Madison). But it is no less important for its difficulty. The “check” the judiciary provides to maintain our separation of powers is enforcement of the rule of law through judicial review. Perez, post, at 14 (opinion of THOMAS, J.). We may not—without imperiling the delicate balance of our constitutional system—forgo our judicial duty to ascertain the meaning of the Vesting Clauses and to adhere to that meaning as the law. Perez, post, at 14-16.
We have been willing to check the improper allocation of executive power, see, e.g., Free Enterprise Fund, 561 U. S. 477; Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252 (1991), although probably not as often as we should, see, e.g., Morrison v. Olson, 487 U. S. 654 (1988). Our record with regard to legislative power has been far worse.
We have held that the Constitution categorically forbids Congress to delegate its legislative power to any other body, Whitman, 531 U. S., at 472, but it has become in-
A
The Court first announced the intelligible principle test in J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394 (1928). That case involved a challenge to a tariff assessed on a shipment of barium dioxide. Id., at 400. The rate of the tariff had been set by proclamation of the President, pursuant to the so-called flexible tariff provision of the Tariff Act of 1922. Ibid. That provision authorized the President to increase or decrease a duty set by the statute if he determined that the duty did not “equalize differences in costs of production [of the item to which the duty applied] in the United States and the principal competing country.” Id., at 401 (quoting
Though worded broadly, the test rested on a narrow foundation. At the time J. W. Hampton was decided, most “delegations” by Congress to the Executive, including the delegation at issue in that case, had taken the form of conditional legislation. See Marshall Field & Co. v. Clark, 143 U. S. 649, 683-689 (1892). That form of legislation “makes the suspension of certain provisions and the going into operation of other provisions of an Act of Congress depend upon the action of the President based upon the occurrence of subsequent events, or the ascertainment by him of certain facts, to be made known by his proclamation.” Id., at 683.
The practice of conditional legislation dates back at least to the Third Congress in 1794. Id., at 683-689 (collecting statutes). It first came before the Court in Cargo of Brig Aurora v. United States, 7 Cranch 382 (1813). There, the Court considered whether a Presidential proclamation could, by declaring that France had ceased to violate the neutral commerce of the United States, reinstate a legislative Act embargoing British goods. Id., at 384, 388. The Court concluded that the proclamation was effective, seeing “no sufficient reaso[n] why the legislature should not exercise its discretion . . . either expressly or conditionally, as their judgment should direct.” Id., at 388.
At least as defined by the Court in Field, the practice of conditional legislation does not seem to call on the President to exercise a core function that demands an exercise of legislative power. Congress creates the rule of private conduct, and the President makes the factual determination that causes that rule to go into effect. That type of factual determination seems similar to the type of factual determination on which an enforcement action is condi-
As it happens, however, conditional statutes sometimes did call for the President to make at least an implicit policy determination. For example, a 1794 provision entitled “An Act to authorize the President of the United States to lay, regulate and revoke Embargoes,”
The existence of these statutes should not be taken to suggest that the Constitution, as originally understood, would permit such delegations. The 1794 embargo statute involved the external relations of the United States, so the determination it authorized the President to make arguably did not involve an exercise of core legislative power. See id., at 1260-1263 (distinguishing the tariff statute at issue in Field and J. W. Hampton on these grounds).5
More to the point, J. W. Hampton can be read to adhere to the “factual determination” rationale from Field. The Court concluded its delegation analysis in J. W. Hampton not with the “intelligible principle” language, but by citing to Field for the proposition that the “Act did not in any real sense invest the President with the power of legislation, because nothing involving the expediency or just operation of such legislation was left to the determination of the President.” 276 U. S., at 410 (emphasis added); Field, 143 U. S., at 692 (explaining that an Act did not “in any real sense, invest the President with the power of legislation“). Congress had created a “named contingency,” and the President “was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect.” J. W. Hampton, supra, at 410-411.6
B
It is nevertheless true that, at the time J. W. Hampton was decided, there was a growing trend of cases upholding statutes pursuant to which the Executive exercised the power of “making . . . subordinate rules within prescribed limits.” Panama Refining Co. v. Ryan, 293 U. S. 388, 421 (1935); see also id., at 429 (collecting cases). These cases involved executive power to make “binding rules of conduct,” and they were found valid “as subordinate rules . . . [when] within the framework of the policy which the legislature ha[d] sufficiently defined.” Id., at 428-429. To the extent that these cases endorsed authorizing the Executive to craft generally applicable rules of private conduct, they departed from the precedents on which they purported to rely.
The key decision to which these cases purport to trace their origin is Wayman, 10 Wheat. 1, but that decision does not stand for the proposition those cases suggest. Although it upheld a statute authorizing courts to set
This important passage reflects two premises that Chief Justice Marshall took for granted, but which are disregarded in later decisions relying on this precedent: First, reflected in his discussion of “blending” permissible with impermissible discretion, is the premise that it is not the quantity, but the quality, of the discretion that determines whether an authorization is constitutional. Second, reflected in the contrast Chief Justice Marshall draws between the two types of rules, is the premise that the rules “for which the legislature must expressly and directly provide” are those regulating private conduct rather than those regulating the conduct of court officers.
Thus, when Chief Justice Marshall spoke about the “difficulty in discerning the exact limits within which the legislature may avail itself of the agency of its Courts,” ibid., he did not refer to the difficulty in discerning whether the Legislature‘s policy guidance is “sufficiently defined,” see Panama Refining, supra, at 429, but instead the difficulty in discerning which rules affected substantive private rights and duties and which did not. We continue to wrestle with this same distinction today in our decisions distinguishing between substantive and procedural rules both in diversity cases and under the Rules
C
Today, the Court has abandoned all pretense of enforcing a qualitative distinction between legislative and executive power. To the extent that the “intelligible principle” test was ever an adequate means of enforcing that distinction, it has been decoupled from the historical understanding of the legislative and executive powers and thus does not keep executive “lawmaking” within the bounds of inherent executive discretion. See Whitman, 531 U. S., at 487 (THOMAS, J., concurring) (“I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power“). Perhaps we were led astray by the optical illusion caused by different branches carrying out the same functions, believing that the separation of powers would be substantially honored so long as the encroachment were not too great. See, e.g., Loving v. United States, 517 U. S. 748, 773 (1996) (“Separation-of-powers principles are vindicated, not disserved, by measured
For whatever reason, the intelligible principle test now requires nothing more than a minimal degree of specificity in the instructions Congress gives to the Executive when it authorizes the Executive to make rules having the force and effect of law. And because the Court has “almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law,” Whitman, supra, at 474-475 (majority opinion) (quoting Mistretta, supra, at 416 (SCALIA, J., dissenting)), the level of specificity it has required has been very minimal indeed, see 531 U. S., at 474 (collecting cases upholding delegations to regulate in the “public interest“). Under the guise of the intelligible-principle test, the Court has allowed the Executive to go beyond the safe realm of factual investigation to make political judgments about what is “unfair” or “unnecessary.” See, e.g., American Power & Light Co. v. SEC, 329 U. S. 90, 104-105 (1946). It has permitted the Executive to make trade-offs between competing policy goals. See,
Our reluctance to second-guess Congress on the degree of policy judgment is understandable; our mistake lies in assuming that any degree of policy judgment is permissible when it comes to establishing generally applicable rules governing private conduct. To understand the “intelligible principle” test as permitting Congress to delegate policy judgment in this context is to divorce that test from its history. It may never be possible perfectly to distinguish between legislative and executive power, but that does not mean we may look the other way when the Government asks us to apply a legally binding rule that is not
We should return to the original meaning of the Constitution: The Government may create generally applicable rules of private conduct only through the proper exercise of legislative power. I accept that this would inhibit the Government from acting with the speed and efficiency Congress has sometimes found desirable. In anticipating that result and accepting it, I am in good company. John Locke, for example, acknowledged that a legislative body “is usually too numerous, and so too slow for the dispatch requisite to execution.” Locke §160, at 80. But he saw that as a benefit for legislation, for he believed that the creation of rules of private conduct should be an irregular and infrequent occurrence. See id., §143, at 72. The Framers, it appears, were inclined to agree. As Alexander Hamilton explained in another context, “It may perhaps be said that the power of preventing bad laws includes that of preventing good ones . . . But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments.” The Federalist No. 73, at 443-444. I am comfortable joining his conclusion that “[t]he injury which may possibly be done by defeating a few good laws will be amply compensated by the advantage of preventing a number of bad ones.” Id., at 444.
IV
Although the majority corrects an undoubted error in the framing of the delegation dispute below, it does so without placing that error in the context of the constitutional provisions that govern respondent‘s challenge to
A
Until the case arrived in this Court, the parties pro-
Although no provision of the Constitution expressly forbids the exercise of governmental power by a private entity, our so-called “private nondelegation doctrine” flows logically from the three Vesting Clauses. Because a private entity is neither Congress, nor the President or one of his agents, nor the Supreme Court or an inferior court established by Congress, the Vesting Clauses would categorically preclude it from exercising the legislative, executive, or judicial powers of the Federal Government. In short, the “private nondelegation doctrine” is merely one application of the provisions of the Constitution that forbid Congress to allocate power to an ineligible entity, whether governmental or private.
For this reason, a conclusion that Amtrak is private—that is, not part of the Government at all—would necessarily mean that it cannot exercise these three categories of governmental power. But the converse is not true: A determination that Amtrak acts as a governmental entity in crafting the metrics and standards says nothing about whether it properly exercises governmental power when it does so. An entity that “was created by the Government,
B
The first step in the Court of Appeals’ analysis on remand should be to classify the power that
1
Under the original understanding of the legislative and executive power, Amtrak‘s role in the creation of metrics and standards requires an exercise of legislative power because it allows Amtrak to decide the applicability of standards that provide content to generally applicable rules of private conduct.
Specifically, the metrics and standards alter the railroads’ common-carrier obligations under
Although the Government‘s argument to the contrary will presumably change now that the Court has held that Amtrak is a governmental entity, it argued before this Court that Amtrak did not exercise meaningful power because other “governmental entities had sufficient control over the development and adoption of the metrics and standards.” Brief for Petitioners 19-26. For support, the Government relied on two questionable precedents in which this Court held that Congress may grant private actors the power to determine whether a government regulation will go into effect: Currin v. Wallace, 306 U. S. 1 (1939), and United States v. Rock Royal Co-operative, Inc., 307 U. S. 533 (1939). Those precedents reason that it does not require an exercise of legislative power to decide whether and when legally binding rules of private conduct will go into effect. Currin, supra, at 16-18; Rock Royal, supra, at 574-577. But as I have explained above, to the extent that this decision involves an exercise of policy discretion, it requires an exercise of legislative power. Supra, at 21-22. In any event, these precedents are directly contrary to our more recent holding that a discretionary “veto” necessarily involves an exercise of legislative power. See INS v. Chadha, 462 U. S. 919, 952-953 (1983); see also id., at 987 (White, J., dissenting) (noting that the
2
I recognize, of course, that the courts below will be bound to apply our “intelligible principle” test. I recognize, too, that that test means so little that the courts are likely to conclude that
As noted,
The critical question, then, is whether Amtrak is adequately subject to Presidential control. See Myers v. United States, 272 U. S. 52, 117 (1926). Our precedents treat appointment and removal powers as the primary devices of executive control, Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477, 492 (2010), and that should be the starting point of the Court of Appeals’ analysis. As JUSTICE ALITO‘s concurrence demonstrates,
*
*
*
In this case, Congress has permitted a corporation subject only to limited control by the President to create legally binding rules. These rules give content to private railroads’ statutory duty to share their private infrastructure with Amtrak. This arrangement raises serious constitutional questions to which the majority‘s holding that Amtrak is a governmental entity is all but a non sequitur. These concerns merit close consideration by the courts below and by this Court if the case reaches us again. We have too long abrogated our duty to enforce the separation of powers required by our Constitution. We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.