Amtrak and the Resurgence of the Non-Delegation Doctrine?

Administrative Law & Regulation Practice Group Teleforum

Congress passed the Passenger Rail Investment and Improvement Act (PRIIA) in 2008. Section 207 of PRIIA requires the Federal Railroad Administration and Amtrak to “jointly develop” the metrics and standards for Amtrak’s performance that are used by the Surface Transportation Board to trigger the investigation of private freight railroads for failing to provide preferences for Amtrak passenger trains (as required by federal law) if Amtrak fails to meet the standards. Is PRIIA Section 207 an unconstitutional delegation of legislative power to a private entity? The D.C. Circuit said yes, concluding that the statute is the functional equivalent of granting General Motors the authority to write regulations covering its industry rivals. The Supreme Court will have a chance to consider the question in Department of Transportation v. Association of American Railroads, scheduled to be heard on December 8, 2014. Our experts will discuss the case and preview the oral arguments.

• Hon. Ronald A. Cass, Dean Emeritus, Boston University School of Law and President, Cass & Associates, PC
• Prof. Michael E. Herz, Arthur Kaplan Professor of Law, Co-Director, Floersheimer Center for Constitutional Democracy, Benjamin N. Cardozo School of Law
• Moderator: Brian Callanan, Associate, King & Spalding

Congress passed the Passenger Rail Investment and Improvement Act (PRIIA) in 2008. Section 207 of PRIIA requires the Federal Railroad Administration and Amtrak to “jointly develop” the metrics and standards for Amtrak’s performance that are used by the Surface Transportation Board to trigger the investigation of private freight railroads for failing to provide preferences for Amtrak passenger trains (as required by federal law) if Amtrak fails to meet the standards. Is PRIIA Section 207 an unconstitutional delegation of legislative power to a private entity? The D.C. Circuit said yes, concluding that the statute is the functional equivalent of granting General Motors the authority to write regulations covering its industry rivals. The Supreme Court will have a chance to consider the question in Department of Transportation v. Association of American Railroads, scheduled to be heard on December 8, 2014. Our experts will discuss the case and preview the oral arguments.

• Hon. Ronald A. Cass, Dean Emeritus, Boston University School of Law and President, Cass & Associates, PC
• Prof. Michael E. Herz, Arthur Kaplan Professor of Law, Co-Director, Floersheimer Center for Constitutional Democracy, Benjamin N. Cardozo School of Law
• Moderator: Brian Callanan, Associate, King & Spalding

Call begins at 1:00 p.m. Eastern Time.

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