NONDELEGATION DOCTRINE

Department of Transportation v. Association of American Railroads

Issues

Does section 207 of the Passenger Rail Investment and Improvement Act, which allows Amtrak and the government to cooperate in developing railroad-related metrics and standards, give Amtrak unconstitutional regulatory power under the non-delegation doctrine?

The Supreme Court will consider whether section 207 of the Passenger Rail Investment and Improvement Act (“PRIIA”) unconstitutionally delegates legislative power to Amtrak. The Department of Transportation argues that section 207 is a constitutional delegation of power because the government maintains sufficient control over Amtrak and has the final say on any policy that Amtrak develops. The Association of American Railroads, however, argues that section 207 is not a constitutional delegation of power because Amtrak is a private entity with rulemaking authority. The Court’s ruling impacts the government’s accountability for Amtrak’s policies and the efficacy of the passenger rail market. 

Questions as Framed for the Court by the Parties

Section 207(a) of the Passenger Rail Investment and Improvement Act of 2008, Pub. L.

No. 110-432, Div. B, 122 Stat. 4916, requires that the Federal Railroad Administration (FRA) and Amtrak “jointly * * * develop” the metrics and standards for Amtrak’s performance that will be used in part to determine whether the Surface Transportation Board (STB) will investigate a freight railroad for failing to provide the preference for Amtrak's passenger trains that is required by 49 U.S.C. 24308(c) (Supp. V 2011). In the event that the FRA and Amtrak cannot agree on the metrics and standards within 180 days, Section 207(d) of the Act provides for the STB to “appoint an arbitrator to assist the parties in resolving their disputes through binding arbitration.” 122 Stat. 4917. The question presented is whether Section 207 effects an unconstitutional delegation of legislative power to a private entity.

In 1970, Congress adopted the Rail Passenger Service Act of 1970 (“RPSA”), which was intended to aid in maintaining a national passenger railway system. See Assoc. of Am. Railroads v. United States Dept. of Transp., 721 F.3d 666, 668 (D.C. Cir.

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Acknowledgments

The authors would like to thank Professor Cynthia R. Farina for her perspective and insights on this case. 

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Federal Communications Commission v. Consumers’ Research

Issues

Did Congress violate the nondelegation clause when it authorized the Federal Communications Commission (“FCC”) to regulate revenue for the Universal Service Fund, which exists to subsidize access to telecommunications; and, did the FCC unconstitutionally delegate authority to a private entity in the implementation of the Universal Service Fund?

This case asks the Court to determine if Congress’ delegation of authority to the FCC under 47 U.S.C. § 254 was unconstitutional, and whether the FCC’s delegation to a private entity to implement some § 254 provisions was unconstitutional. The FCC argues that the delegation was not unconstitutional because Congress gave the FCC an “intelligible principle” with which to execute the statute. The FCC further contends that it only used a private entity for advice and maintained ultimate authority when it came to the implementation of the statute. Consumers’ Research argues that the statute only announces vague aspirational policy goals and gives too much legislative power to the FCC. Additionally, Consumers’ Research posits that the private entity’s involvement in the implementation of the statute went beyond advice and amounted to private creation of federal law. This case involves questions regarding the separation of powers and how much leeway agencies have in implementing policy. 

Questions as Framed for the Court by the Parties

(1) Whether Congress violated the nondelegation doctrine by authorizing the Federal Communications Commission to determine, within the limits set forth in 47 U.S.C. § 254, the amount that providers must contribute to the Universal Service Fund; (2) whether the FCC violated the nondelegation doctrine by using the financial projections of the private company appointed as the fund's administrator in computing universal service contribution rates; (3) whether the combination of Congress’s conferral of authority on the FCC and the FCC’s delegation of administrative responsibilities to the administrator violates the nondelegation doctrine; and (4) whether this case is moot in light of the challengers' failure to seek preliminary relief before the 5th Circuit.

It has been a longstanding congressional policy to ensure that all Americans have access to telecommunications services. Consumers’ Research v. FCC at 2. For many years, Congress achieved this policy by allowing AT&T, which once held a regulated monopoly over the telecommunications industry, to charge urban customers high rates.

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Haaland v. Brackeen

Issues

Does the Indian Child Welfare Act discriminate based on race and commandeer state apparatuses in the adoption placements of Indian children?

Note: The authors mirror the parties’ and courts’ use of the terms “Indian” and “Indian child” as legal terms in this Preview.

This case asks the Supreme Court to determine whether the Indian Child Welfare Act (“ICWA”) violates the U.S. Constitution’s Fourteenth Amendment equal protection guarantee and contravenes anticommandeering principles rooted in the Tenth Amendment. Deb Haaland, Secretary of the United States Department of the Interior, argues that ICWA’s classification of “Indian child” is constitutional because the classification is political and tied to Congress’s “unique obligation” to Indian tribes. Haaland further contends that Congress has the power to regulate Indian child placement preferences under the Indian Commerce Clause. Chad Everet Brackeen asserts that ICWA’s classification of “Indian child” is race-based and violates the Equal Protection Clause. Brackeen also asserts that ICWA’s placement preferences exceed Congress’s authority by forcing state agencies to carry out federal laws. The outcome of this case has important implications for Indian children’s interests, tribal interests, and state sovereignty regarding the adoption proceedings of Indian children.

Questions as Framed for the Court by the Parties

1. Whether ICWA’s placement preferences— which disfavor non-Indian adoptive families in child- placement proceedings involving an “Indian child” and thereby disadvantage those children—discriminate on the basis of race in violation of the U.S. Constitution.

2. Whether ICWA’s placement preferences exceed Congress’s Article I authority by invading the arena of child placement—the “virtually exclusive province of the States,” Sosna v. Iowa, 419 U.S. 393, 404 (1975)—and otherwise commandeering state courts and state agencies to carry out a federal child-placement program.

In 1978, Congress enacted the Indian Child Welfare Act (“ICWA”) to protect American Indian children from widespread removal from their native families and communities and placement in non-Indian homes. Brackeen v. Haaland at 28–29. Prior to ICWA’s adoption, 25 to 35 percent of Indian children were removed from their families.

Acknowledgments

The authors would like to thank Professor Michael Sliger and Derril B. Jordan, Esq. for their guidance and insights into this case.

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Securities and Exchange Commission v. Jarkesy

Issues

Does the Securities and Exchange Commission’s choice of enforcement proceedings violate the Seventh Amendment or nondelegation doctrine, and does the for-cause removal of Administrative Law Judges violate Article II of the United States Constitution?

This case asks the Supreme Court to decide whether the Securities and Exchange Commission’s (“SEC”) power to adjudicate securities fraud claims violates the Seventh Amendment or nondelegation doctrine, and if the for-cause removal protections for Administrative Law Judges violate the Take Care Clause. The SEC argues that securities fraud actions only implicate public rights that do not require juries, that its power to choose between adjudicatory and court-based enforcement was created lawfully by Congress, and that the for-cause removal protections do not unduly interfere with the President’s power. Jarkesy counters that securities fraud claims are private rights that require juries, that the SEC’s choice of where to adjudicate enforcement actions unduly delegated legislative power, and that the for-cause protections interfere with Presidents’ ability to carry out their duties. The outcome of this case has serious implications for securities regulation, the workability of administrative enforcement actions, and public faith in federal adjudicatory institutions.

Questions as Framed for the Court by the Parties

  1. Whether statutory provisions that empower the Securities and Exchange Commission to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment.
  2. Whether statutory provisions that authorize the SEC to choose to enforce securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine.
  3. Whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection.

In 1934, Congress passed the Securities and Exchange Act of 1934 (“the Act”) creating the Securities and Exchange Commission (“SEC”). 15 U.S.C. 78d(a). Its primary purpose was to protect investors and ensure a fair and efficient market. Id. The SEC is comprised of five commissioners who are appointed by the President with the advice and consent of the Senate. Id.

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