Jerrold J. Ganzfried is a Partner and Jameson B. Rice an
Associate in our
Washington D.C. office
Yesterday, the U.S. Supreme Court heard oral argument in
Dep't of Transp. v. Ass'n of Am. Railroads. At
issue is whether
Congress may grant Amtrak, a private entity created by
Congress, the power to co-author regulations governing, and appoint
an arbitrator for disputes concerning, private freight railroads,
as instructed by § 207 of the Passenger Rail Investment
Improvement Act without violating the non-delegation doctrine or
due process clause.
During oral argument, counsel for the Department of
Transportation argued that the metrics and standards developed
pursuant to the statute are not regulatory and that instead any
"regulatory effect" comes from the long-standing
statutory preference requirement enacted by Congress rather than
Amtrak. Counsel for the Association of American Railroads responded
that to impose liability on the freight railroads,
