On March 9, 2015, the Supreme Court decided Department of Transportation v. Association of American Railroads. The question in this case is whether the Passenger Rail Investment and Improvement Act of 2008 unconstitutionally delegates legislative power to a putatively private entity--Amtrak--by involving it in the creation of standards used to determine whether freight railroads are according the preference to Amtrak’s passenger trains that is required by federal law regarding the use of rail lines.
In an opinion delivered by Justice Kennedy, the Court held unanimously that for purposes of determining the validity of the metrics and standards issued by Amtrak, Amtrak is a governmental entity. Justices Kennedy's opinion for the Court was joined by the Chief Justice and Justices Scalia, Ginsburg, Breyer, Alito, Sotomayor, and Kagan. Justice Alito also filed a concurring opinion. Justice Thomas filed an opinion concurring in the judgment. The judgment of the D.C. Circuit was vacated and remanded for further proceedings.
To discuss the case, we have Prof. Alexander “Sasha” Volokh, who is an Associate Professor of Law at the Emory University School of Law. Professor Volokh received his JD and PhD in economics from Harvard University. He regularly teaches a course on law and economics of anti-trust and has participated as an expert witness in cases involving anti-trust or before the FTC.