i
No. 13-1080
In the
Supreme Court of the United States
DEPARTMENT OF TRANSPORTATION, et al.
Petitioners,
v.
ASSOCIATION OF AMERICAN RAILROADS,
Respondent.
On Writ of Certiorari to the United States
Court of Appeals for the District of Columbia Circuit
BRIEF AMICUS CURIAE OF CENTER FOR
CONSTITUTIONAL JURISPRUDENCE IN
SUPPORT OF RESPONDENT
JOHN C. EASTMAN
ANTHONY T. CASO
Counsel of Record
Center for Constitutional
Jurisprudence
c/o Fowler School of Law
One University Drive
Orange, CA 92866
Telephone: (714) 628-2666
E-Mail: [email protected]
Counsel for Amicus Curiae
Center for Constitutional Jurisprudence
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QUESTIONS PRESENTED
Whether Congress may constitutionally delegate
legislative authority to a private entity, make delegations not bound by an intelligible principle, and
create Officers of the United States who are not subject to removal by the President.
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TABLE OF CONTENTS
QUESTIONS PRESENTED ....................................... i TABLE OF AUTHORITIES ...................................... iii IDENTITY AND INTEREST OF
AMICUS CURIAE ......................................................1 SUMMARY OF ARGUMENT .....................................2 I. The Non-Delegation Doctrine Demands, at the
Minimum, that Congress Limit Delegations by
Setting Out an Intelligible Principle to Guide
the Executive Agency...........................................3 II. The Arbitrator in this Statutory Scheme is an
Officer of the United States Who Must Be
Subject to Removal by the President ..................8 CONCLUSION ..........................................................12 iii
TABLE OF AUTHORITIES
Cases A.L.A. Schechter Poultry Corp. v. United States,
295 U.S. 495 (1935)...................................... 3, 4, 6, 7
American Power & Light Co. v. Securities and
Exchange Commission,
329 U.S. 90 (1946).................................................... 4
Buckley v. Valeo,
424 U.S. 1 (1976)...................................................... 9
Christopher v. SmithKline Beecham, Corp.,
132 S. Ct. 2156 (2012).............................................. 1
Edmund v. United States,
520 U.S. 651 (1997)................................................ 10
Ex Parte Siebold,
100 U.S. 371 (1880).................................................. 9
Free Enterprise Fund v. Public Company
Accountancy Oversight Board,
561 U.S. 477; 130 S. Ct. 3138 (2010)..................... 11
J.W. Hampton Jr. & Co. v. United States,
276 U.S. 394, 409 (1928) .......................................... 4
Morrison v. Olson,
487 U.S. 654 (1988)............................................ 9, 10
National Broadcasting Co. v. United States,
319 U.S. 190, 225-26 (1943) ................................ 4, 5
National Federation of Independent Business v.
Sebelius,
132 S. Ct. 2566 (2012).............................................. 1
Panama Refining Co. v. Ryan,
293 U.S. 388 (1935).................................................. 6
iv
Sackett v. Environmental Protection Agency,
132 S. Ct. 1367 (2012).............................................. 1
United States v. Eaton,
169 U.S. 331 (1898)............................................ 9, 10
United States v. Germaine,
99 U.S. 508 (1879).................................................... 9
United States v. Perkins,
116 U.S. 483 (1886)................................................ 11
Whitman v. American Trucking Association,
531 U.S. 457, 474-75 (2001) ................................ 5, 6
Yakus v. United States,
321 U.S. 414 (1944).................................................. 4
Other Authorities Locke, John, THE TWO TREATISES OF CIVIL
GOVERNMENT, Book II, (Hollis Ed. (1764)) (Liberty
Fund Online Library) .............................................. 3
Madison, James, THE FEDERALIST NO. 47 (Clinton
Rossiter, Ed. (1961)) ................................................ 3
Rules Sup. Ct. R. 37.3(a) ....................................................... 1
Sup. Ct. R. 37.6 ............................................................ 1
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IDENTITY AND
INTEREST OF AMICUS CURIAE
Amicus, the Claremont Institute’s Center for
Constitutional Jurisprudence,1 is dedicated to upholding the principles of the American Founding, including the individual liberties the Framers sought
to protect by adoption of the Constitution. In addition to providing counsel for parties at all levels of
state and federal courts, the Center has participated
as amicus curiae before this Court in several cases of
constitutional significance, including National Federation of Independent Business v. Sebelius, 132 S.
Ct. 2566 (2012); Christopher v. SmithKline Beecham,
Corp., 132 S. Ct. 2156 (2012); and Sackett v. Environmental Protection Agency, 132 S. Ct. 1367 (2012),
to name a few.
The Center is vitally interested in preserving
the constitutional structure of government with
enumerated powers, separated between constitutional actors. This case tests the proposition that Congress must circumscribe delegations of authority to
the Executive Branch by an intelligible principle. It
further presents the Court for the first time with the
question of whether an “arbitrator” granted the powers of government is an officer of the United States
who must be subject to the President’s power of re1 Pursuant to this Court’s Rule 37.3(a), all parties have consented to the filing of this brief. Copies of those consents have
been lodged with the clerk.
Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel for any party authored this brief in whole or in part, and no
counsel or party made a monetary contribution intended to
fund the preparation or submission of this brief. No person
other than Amicus Curiae, its members, or its counsel made a
monetary contribution to its preparation or submission.
2
moval. As we drift further from the principles of
government that were enshrined in our Constitution,
we endanger the core mission of the Constitution of
preserving individual liberty.
SUMMARY OF ARGUMENT
The United States concedes that the statute at
issue must be given a limiting construction in order
to avoid constitutional infirmity. Acknowledging the
ruling of the court below that the statue could be
read to allow delegation of government power to a
private arbitrator, the United States argues that this
Court should reform the statute with a “limiting construction.” This ignores the fact that the statute is
silent on whether the arbitrator is a government or
private actor. It is silent on the qualifications of the
arbitrator. It is silent on how the Surface Transportation Board should choose the arbitrator. It is silent
on how the arbitrator should conduct proceedings or
whether to conduct proceedings at all. It is silent on
who, if anybody, can participate in any arbitration
proceedings that the arbitrator may choose to hold.
It is silent on factors the arbitrator should apply in
reaching a decision. In other words, the statute is
utterly devoid of any intelligible principle to guide
the process of selection of the arbitrator and conduct
of arbitration proceedings.
Once chosen, the statute vests the arbitrator
with unbridled discretion to exercise significant government power in setting the metrics that are at issue in this case. Under this scheme, the arbitrator is
an “officer of the United States.” Congress failed,
however, to create a mechanism for removal of the
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arbitrator for any cause. Neither the Board nor the
President has authority under this statue to terminate the arbitrator. This scheme violates separation
of powers.
ARGUMENT
I.
The Non-Delegation Doctrine Demands, at
the Minimum, that Congress Limit Delegations by Setting Out an Intelligible Principle to Guide the Executive Agency
The Constitution describes a federal government
of limited, enumerated power. If a power is not
enumerated, it is reserved to the states or to the people by the Tenth Amendment. Moreover, even when
dealing with subjects that are among the enumerated powers granted to Congress, Congress does not
have authority to delegate its own power to another
entity. A.L.A. Schechter Poultry Corp. v. United
States, 295 U.S. 495, 529 (1935). As John Locke
notes, legislatures have the power to make laws, not
legislators. John Locke, THE TWO TREATISES OF CIVIL
GOVERNMENT, Book II, §141(Hollis Ed. (1764)) (Liberty Fund Online Library at 156).
This restriction on Congress is not based solely
on the description of its enumerated power. The specific enumeration of power to each branch of the national government was meant to separate and equalize power between the branches. The founding generation paid attention to the warning of Montesquieu
that the union of legislative and executive power is a
grave danger to liberty. James Madison, THE FEDERALIST NO. 47 (Clinton Rossiter, Ed. (1961)) at 30102. There is a special concern, therefore, when pow-
4
er is transferred from the legislative to the executive
branch.
This does not mean that Congress must fill in
every detail in every statute, or that it cannot grant
the Executive Branch the flexibility necessary to accomplish the Congressional objective.
Congress
must, however, establish for itself “the standards of
legal obligation, thus performing its essential legislative function.” Schechter Poultry, 295 U.S., at 530.
The Court now describes this “standards of legal
obligation” formula as an “intelligible principle to
which the person or body authorized to [promulgate
regulations] is directed to conform.” J.W. Hampton
Jr. & Co. v. United States, 276 U.S. 394, 409 (1928).
Congress sets the policy and the executive branch
administers the law within the confines of that policy.
Since the decision in Schechter Poultry, this
Court has approved delegations constrained by seemingly broad and largely undefined policy statements.
E.g., American Power & Light Co. v. Securities and
Exchange Commission, 329 U.S. 90, 104 (1946) (authorizing SEC to ensure company structure was not
unfair or inequitable); Yakus v. United States, 321
U.S. 414, 420, 423-26 (1944)(the constraining policy
required the agency to be fair and equitable); National Broadcasting Co. v. United States, 319 U.S.
190, 225-26 (1943)(requirement that the agency act
in the “public interest” was a sufficient constraint).
Indeed, this Court has gone so far as to suggest that
it will not “‘second guess Congress regarding the
permissible degree of policy judgment that can be left
to those executing or applying the law.’” Whitman v.
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American Trucking Association, 531 U.S. 457, 474-75
(2001).
In each of these cases, however, the Court recognized that Congress had set down the policy for
the executive to follow. Although broad, the policy or
intelligible principle was still discernable. For instance, in National Broadcasting the Court upheld a
statute authorizing the Federal Communications
Commission to regulate the licensing of radio broadcasting under the Communications Act of 1934 based
on “public interest, convenience, or necessity.” National Broadcasting, 319 U.S., at 216. This Court
ruled that the “public interest” standard was sufficiently concrete because the term is interpreted within the context of the statute. Id. It cannot be interpreted as granting the Commission “unlimited power,” but must be viewed in the context of the limited
radio spectrum and the interest of the public in effective use of the scarce resource. Id. In short, Congress had determined the scope of the “public interest” that guided the Commission’s regulation.
The same is true of the statutory grant upheld
in Whitman. There, this Court approved a delegation
to “EPA to set air quality standards at the level that
is ‘requisite’” to protect public health. Whitman, 531
U.S. at 475-76. That standard was sufficient because
the term “requisite” in that context was definable as
“not lower or higher than is necessary—to protect the
public health with an adequate margin of safety.”
Id., at 475-76. The “intelligible principle” standard is
not stringent or difficult for Congress to meet. But
this Court has not approved a delegation without any
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intelligible principle whatsoever.2 A.L.A Schechter
Poultry, 295 U.S., at 541-42 (“Instead of prescribing
rules of conduct, it authorizes the making of codes to
prescribe them); Panama Refining Co. v. Ryan, 293
U.S. 388, 415 (1935) (statute giving the President
“unlimited authority to determine the policy” is beyond Congress’ power to enact).
The arbitration provisions of this statute contain
no legal standards or intelligible principles. The
Surface Transportation Board appoints arbitrator
after Amtrak, the Federal Railroad Administration,
or any party involved in the development of the
standards requests the appointment. The arbitrator
is empowered to issue a decision binding both
Amtrak and the federal government (and private
railroads who share their tracks with Amtrak) on the
metrics and standards. That is the sum total of the
meaning that can be squeezed out of this statute regarding the Board’s selection of the arbitrator and
the arbitrator’s decision.
The lack of congressional guidance is highlighted by the United States’ concession that this Court
can invoke “principles of constitutional avoidance” to
give this statute a “narrowing” construction that
would prohibit the Board from selecting a private in-
As Justice Thomas has noted, “the Constitution does not
speak of ‘intelligible principles.’ Rather, it speaks in much simpler terms: ‘All legislative Powers herein granted shall be vested in a Congress.’” Whitman, 531 U.S., at 487 (Thomas, J., concurring). Since this statute contains no principle, intelligible or
otherwise, there is no need for the Court in this case to determine whether the intelligible principle doctrine is itself inconsistent with the Constitution.
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dividual as the arbitrator.3 Appellants’ Brief at 29.
However, a narrowing construction is only necessary
if the statute itself provides no guidance on the question. This statute is silent not only on the status of
the arbitrator (private or government), but also on
the selection process and factors guiding the arbitrator’s decision.
The United States urges that this Court can use
the doctrine of constitutional avoidance to “construe”
this statute as permitting the appointment of only a
government arbitrator. That is of little help here,
however. There is no Office of Federal Arbitrators to
whom the Surface Transportation Board can turn.
The Board will have to decide whether it can appoint
an official of the Federal Railroad Administration
(one of the parties to the arbitration) as the arbitrator, or whether it must seek a federal arbitrator from
some other agency. Assuming the Board wants an
arbitrator from within the Department of Transportation, does it pick someone from the Federal Aviation Administration, the Federal Motor Carrier Safety Administration, or the National Highway Traffic
Safety Administration? The statute does not say.
3 The United States suggests that this Court in Schechter did
not criticize the statute for its delegation of government power
to private entities. Appellants’ Brief at 20 n.5. This is a serious
misreading of that decision. As this Court noted: “Could trade
or industrial associations or groups be constituted legislative
bodies for that purpose because such associations or groups are
familiar with the problems of their enterprises? … The answer
is obvious. Such a delegation of legislative power is unknown to
our law, and is utterly inconsistent with the constitutional prerogatives and duties of Congress.” ALA Schechter, 295 U.S., at
537. The Court did not base its ruling on that issue since the
statute delegated the power to the President rather than the
trade associations. Id.
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Can anyone challenge the selection of the arbitrator?
The statute is silent.
Once the Board chooses the arbitrator, how does
the arbitration proceed? There is no guidance in the
statute. Must the arbitrator take evidence or consider the positions of Amtrak, the Federal Railroad Authority, or private railroads? How does the arbitrator reach a decision? What factors guide the exercise
of discretion in setting the metrics and standards?
Again, the statute is silent.
The only thing that is clear is that there is no
appeal from the arbitrator’s decision. The statute
characterizes the arbitration as “binding.” The statute gives the arbitrator the power to bind Amtrak,
the Federal Railroad Authority, the Surface Transportation Board, and the private railroads whose
tracks Amtrak shares. Congress provided no guidance, however, for that decision. Congress provided
no direction for how the Board should select the arbitrator. Congress provided no guidance for how the
arbitration should proceed. The statute lacks any
semblance of an “intelligible principle” that could
guide the exercise of agency discretion. This lack of
guidance renders the statute unconstitutional.
II. The Arbitrator in this Statutory Scheme Is
an Officer of the United States Who Must
Be Subject to Removal by the President
This Court has yet to address whether Congress
can turn over government decision-making to an arbitrator empowered to make binding (nonappealable)
decisions. Under this statute, the arbitrator’s decision binds not only Amtrak, a private entity, but also
the Federal Railroad Administration and, by exten-
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sion, the Surface Transportation Board. The arbitrator’s decision remains in effect until Congress enacts
a new law. Congress did nothing to limit the arbitrator’s discretion or even to dictate the procedure that
the arbitrator must use. Once appointed the arbitrator answers to no agency of government and is apparently not subject to removal. Because of the significant authority to bind both the government and
private parties to his decision, the arbitrator described in the statute is an officer of the United
States and must be subject to removal by the President.
Older decisions of this Court defined “officer” by
“tenure, duration, emolument, and duties” and required the position to be “continuing and permanent.” United States v. Germaine, 99 U.S. 508, 51112 (1879). Later decisions, however, have discarded
the requirement of “permanence.” See Morrison v.
Olson, 487 U.S. 654, 672-73 (1988) (special prosecutor whose appointment is limited to a particular case
is an inferior officer); United States v. Eaton, 169
U.S. 331, 343 (1898) (a vice-consul with a temporary
appointment to perform functions of consular office is
an inferior officer); Ex Parte Siebold, 100 U.S. 371,
397-98 (1880) (elections officers appointed to supervise an election are inferior officers).
Instead of duration of the position, the Court
now focuses on whether the individual in question
exercises “significant authority.” Buckley v. Valeo,
424 U.S. 1, 125-26 (1976). The officer who exercises
significant authority is distinguished from mere employees characterized as “lesser functionaries.” Id.,
at 126, n.162. By contrast, a principle officer is not
subject to the control or direction of any other au-
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thority. Id. An inferior or subordinate officer is one
“whose work is directed and supervised at some level
by others who were appointed by Presidential nomination.” Edmund v. United States, 520 U.S. 651, 663
(1997).
The statute under review in this case grants the
arbitrator “significant authority.” The arbitrator is
empowered to issue a final and binding decree setting the metrics that Amtrak must meet and that
dictate track usage by all freight lines whose tracks
Amtrak uses. The metrics also bind the United
States. The Federal Railroad Administration cannot
impose any metrics that differ from the arbitrator’s
decision and the Surface Transportation Board must
use those metrics as the basis for its investigations
and decisions.
There is no appeal from the arbitrator’s decision.
Unlike agency rulemaking, the Administrative Procedure Act does not apply to the arbitrator. Thus,
there is no public comment. There is no notice of the
proceeding in the Federal Register. Significantly,
there is no judicial review. Instead, the arbitrator
issues a ruling that binds both the government and
the rail industry. This is significant authority.
Under this statute, the arbitrator is not subject
to any supervision at all. Nonetheless, the single focus and temporary nature of the appointment show
that the arbitrator fits best as an inferior or subordinate officer rather than a principle officer. See Morrison, 487 U.S., at 673; Eaton, 169 U.S., at 343.
Even as an inferior officer, however, the arbitrator
must still be subject to the President’s supervision.
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Article II gives the President control of the Executive Branch of the national government. That
power of administration necessarily includes some
power of removal. Free Enterprise Fund v. Public
Company Accountancy Oversight Board, 561 U.S.
477; 130 S. Ct. 3138, 3152 (2010). Although this
Court has held that Congress can limit the President’s power of removal by protecting the tenure of
subordinate officers with a good cause requirement
for removal, Congress cannot completely insulate
even subordinate officers from Presidential supervision. Id., at 3155. Just as Congress may not delegate legislative authority, it similarly has no power
to invest executive authority in an officer not subject
to the President’s supervision. This Court noted in
Free Enterprise Fund: “The Framers did not rest our
liberties on … bureaucratic minutiae.” Id., at 3156.
Instead, they established a structure where the President was answerable to the people for the actions of
the Executive Branch. Congress may not disrupt
this constitutional scheme by insulating executive
officers from presidential supervision.
The statute before the Court does not contemplate removal of the arbitrator once appointed.
There is no power in the Surface Transportation
Board to revoke the appointment. Once the Board
makes the appointment, it must wait for the decision
that will bind it, the Federal Railroad Authority, and
the private railroads with whom Amtrak shares
track. The Board can take no other action. Statutory silence cannot grant removal power. United
States v. Perkins, 116 U.S. 483, 484-85 (1886).
Congress created an “officer of the United
States” in this statute, but failed to provide for re-
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moval of that officer. Because Congress insulated
the officer supervision by the President, the statute
is unconstitutional.
CONCLUSION
It has been nearly 80 years since this Court
upheld a nondelegation challenge. During that time
this Court has granted significant leeway to Congress to vest discretion in the Executive so long as
Congress set forth some discernable policy, some intelligible principle. Congress has failed to set forth
the required standard of legal obligation in this case.
The statute authorizes both the Federal Railroad Authority and a private company to delegate to an arbitrator the power to render a decision binding on both
the government and private parties. Congress failed
to set down any principle, however, for selecting the
arbitrator or for how the arbitrator is supposed to
exercise his power.
Because the statute grants the arbitrator significant powers, the arbitrator is an officer of the United States. The statute provides no means for removal of the arbitrator, however. The arbitrator is free
from the supervision of the one person tasked with
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the constitutional duty to faithfully execute the law –
the President. This insulation of the arbitrator violates separation of powers.
DATED: September, 2014.
Respectfully submitted,
JOHN C. EASTMAN
ANTHONY T. CASO
Counsel of Record
Center for Constitutional
Jurisprudence
c/o Fowler School of Law
One University Drive
Orange, CA 92866
Telephone: (714) 628-2666
E-Mail: [email protected]
Counsel for Amicus Curiae
Center for Constitutional Jurisprudence