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).

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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2 Responses

  1. Joe says:

    Someone is trolling for a citation in a footnote.

    Seriously, I see the lower court opinion did bring up McCulloch, but it doesn’t really appear to distinguish it.

  2. Joe says:

    I don’t know if it is the same thing at all, but this brings to mind SCOTUSBlog’s credentials problems:

    “A terrible Supreme Court decision yesterday probably hasn’t gotten the attention it really deserves. That’s likely because the decision wasn’t made by the justices but rather by a group of journalists who have the power to decide who gets credentials to cover Congress (which in turn helps determine who gets credentials to cover the Supreme Court).”