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Separation of Powers

Amtrak and the Non-Delegation Doctrine in the Supreme Court - Podcast

Litigation Practice Group Podcast
C. Frederick Beckner December 10, 2014

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. Will the Supreme Court agree and breathe life into the rarely invoked non-delegation doctrine? Our expert attended the oral argument on Monday, December 8, and offered his impressions to a Teleforum audience.

  • C. Frederick Beckner, III, Partner, Sidley Austin LLP

Department of Transportation v. Association of American Railroads - Post-Argument SCOTUScast

SCOTUScast 12-10-14 featuring Alexander Volokh
Alexander Volokh December 10, 2014

On December 8, 2014, the Supreme Court heard oral argument in 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.

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.

Amtrak and the Resurgence of the Non-Delegation Doctrine? - Podcast

Administrative Law & Regulation Practice Group Podcast
Ronald A. Cass, Michael E. Herz, Brian Callanan December 05, 2014

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 discussed the case and previewed 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

Immigration: The Limits of Executive Authority - Podcast

Federalism & Separation of Powers Practice Group Podcast
John S. Baker, Jr., John C. Eastman, Margaret D. Stock, John C. Yoo December 04, 2014

The President, with much attention from the media and the public, announced executive action on immigration. Our discussion will address the specifics of the President’s actions, and the legality of those actions. What exactly was said and done by the President, and how do his actions differ from acts he previously asserted were beyond his unilateral power? Has the President exceeded his constitutional authority to act? What happens next?

  • Prof. John S. Baker, Jr., Visiting Professor, Georgetown University Law Center and Professor Emeritus, LSU Law School
  • Prof. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law
  • Margaret D. Stock, Counsel to the Firm, Cascadia Cross-Border Law
  • Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California Berkeley School of Law