[Rushtalk] Justice Thomas on the nondelegation doctrine and separation of powers

Carl Spitzer lynux at keepandbeararms.com
Sun Apr 12 11:51:13 MDT 2015

-------- Forwarded Message --------
From: Jon Roland jon.roland at constitution.org [JBIRCH]
<JBIRCH at yahoogroups.com>

Justice Thomas on the nondelegation doctrine and separation of powers

By Eugene Volokh March 9 at 11:54 AM

Today’s decision in Dep’t of Transportation v. Ass’n of American
Railroads deals primarily with whether Amtrak should be considered a
private entity or a governmental one — the Court unanimously says it’s
governmental. Sasha’s post, which I highly recommend, discusses the case
in much more detail.

Justice Thomas, though, has a long and detailed dissent about the
separation of powers and the nondelegation doctrine. I can’t do it
justice in a short post, but here is how it closes (paragraph break

        In this case, Congress has permitted a corporation subject only
        to limited control by the President to create legally binding
        rules. These rules give content to private railroads’ statutory
        duty to share their private infrastructure with Amtrak. This
        arrangement raises serious constitutional questions to which the
        majority’s holding that Amtrak is a governmental entity is all
        but a non sequitur. These concerns merit close consideration by
        the courts below and by this Court if the case reaches us again.
        We have too long abrogated our duty to enforce the separation of
        powers required by our Constitution. We have overseen and
        sanctioned the growth of an administrative system that
        concentrates the power to make laws and the power to enforce
        them in the hands of a vast and unaccountable administrative
        apparatus that finds no comfortable home in our constitutional
        structure. The end result may be trains that run on time
        (although I doubt it), but the cost is to our Constitution and
        the individual liberty it protects.

Justice Alito also has a separate concurrence, suggesting that the way
Amtrak is structured might well be unconstitutional, for instance
because the way some of its officers are appointed may violate the
Appointments Clause. Very interesting.

-- Jon

Constitution Society               http://constitution.org
13359 N Hwy 183 #406-144               twitter.com/lex_rex
Austin, TX 78750 512/299-5001  jon.roland at constitution.org

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