The Non-Delegation Doctrine
Today the Court granted certiorari in a case (U.S. Department of Transportation v. Association of American Railroads) that presents the question of whether a federal statute that delegates regulatory authority to Amtrak is constitutional. The issue is whether Congress can so delegate to a private party (assuming that Amtrak is one), and the decision striking down the National Industrial Recovery Act on similar grounds in Schechter Poultry promises to get a lot of attention in the briefs.
I hope, though, that the parties will focus on the precedent of the Second Bank of the United States. One of Andrew Jackson’s arguments against the constitutionality of the Bank was that it involved an unconstitutional delegation to a private entity (and the Bank, of course, was much more powerful than Amtrak). Indeed, this was the best argument against the Bank (totally ignored by M’Culloch, by the way)) and the only one that stands up today. To the extent that we think that the Bank was unconstitutional (a conclusion that is by no means obvious), the principle behind that must be that some delegations of regulatory power to a private entity are invalid. My book on Jacksonian Democracy gets into the weeds on some of these issues, for those who are interested.
UPDATE: I now see that I was somewhat unclear. Clearly you can argue that because M’Culloch upheld the constitutionality of the Bank, then that means that a delegation to a private party can be valid. My point is that those who are against the Amtrak delegation must deal with the Bank issue (perhaps by appealing to the court of history as rejecting the delegation to the Bank).