SUPREME COURT OF THE UNITED STATES
_________________
No. 13–1080
_________________
DEPARTMENT OF TRANSPORTATION, et al., PETITIONERS
v.
ASSOCIATION OFAMERICAN RAILROADS
on writ of certiorari to the united states court of appeals for
the district of columbia circuit
[March 9, 2015]
Justice Thomas, concurring in the judgment.
We have come to a strange place in our separation-of-powers
jurisprudence. Confronted with a statute that authorizes a
putatively private market participant to work hand-in-hand with an
executive agency to craft rules that have the force and effect of
law, our primary question—indeed, the primary question the parties
ask us to answer—is whether that market participant is subject to
an adequate measure of control by the Federal Government. We never
even glance at the Constitution to see what it says about how this
authority must be exercised and by whom.
I agree with the Court that the proper disposition in this case
is to vacate the decision below and to remand for further
consideration of respondent’s constitutional challenge to the
metrics and standards. I cannot join the majority’s analysis,
however, because it fails to fully correct the errors that require
us to vacate the Court of Appeals’ decision. I write separately to
describe the framework that I believe should guide our resolution
of delegation challenges and to highlight serious constitutional
defects in the Passenger Rail Investment and Improvement Act of
2008 (PRIIA) that are properly presented for the lower courts’
review on remand.
I
The Constitution does not vest the Federal Government with an
undifferentiated “governmental power.” Instead, the Constitution
identifies three types of governmental power and, in the Vesting
Clauses, commits them to three branches of Government. Those
Clauses provide that “[a]ll legislative Powers herein granted shall
be vested in a Congress of the United States,” Art. I, §1,
“[t]he executive Power shall be vested in a President of the United
States,” Art. II, §1, cl. 1, and “[t]he judicial Power of the
United States, shall be vested in one supreme Court, and in such
inferior Courts as the Congress may from time to time ordain and
establish,” Art. III, §1.
These grants are exclusive. See
Whitman v.
American
Trucking Assns., Inc.,531 U. S. 457,472 (2001)
(legislative power);
Free Enterprise Fund v.
Public
Company Accounting Oversight Bd.,561 U. S. 477–497 (2010)
(executive power);
Stern v.
Marshall, 564 U. S.
___, ___–___ (2011) (slip op., at 16–17) (judicial power). When the
Government is called upon to perform a function that requires an
exercise of legislative, executive, or judicial power, only the
vested recipient of that power can per-form it.
In addition to allocating power among the different branches,
the Constitution identifies certain restrictions on the
manner in which those powers are to be exercised. Article I
requires, among other things, that “[e]very Bill which shall have
passed the House of Representatives and the Senate, shall, before
it become a Law, be presented to the President of the United
States; If he approve he shall sign it, but if not he shall return
it . . . .” Art. I, §7, cl. 2. And although the
Constitution is less specific about how the President shall
exercise power, it is clear that he may carry out his duty to take
care that the laws be faithfully executed with the aid of
subordinates.
Myers v.
United States,272 U. S.
52,117 (1926), overruled in part on unrelated grounds in
Humphrey’s Executor v.
United States,295 U. S.
602 (1935).
When the Court speaks of Congress improperly delegating power,
what it means is Congress’ authorizing an entity to exercise power
in a manner inconsistent with the Constitution. For example,
Congress improperly “delegates” legislative power when it
authorizes an entity other than itself to make a determination that
requires an exercise of legislative power. See
Whitman,
supra, at 472. It also improperly “delegates” legislative power
to itself when it authorizes itself to act without bicameralism and
presentment. See,
e.g., INS v.
Chadha,462 U. S.
919 (1983). And Congress improperly “delegates”—or, more precisely,
authorizes the exercise of, see
Perez v.
Mortgage Bankers
Assn.,
post, at 22 (Thomas, J., concurring in judgment)
(noting that Congress may not “delegate” power it does not
possess)—executive power when it authorizes individuals or groups
outside of the President’s control to perform a function that
requires the exercise of that power. See,
e.g., Free Enterprise
Fund,
supra.
In order to be able to adhere to the provisions of the
Constitution that allocate and constrain the exercise of these
powers, we must first understand their boundaries. Here, I do not
purport to offer a comprehensive description of these powers. My
purpose is to identify principles relevant to today’s dispute, with
an eye to offering guidance to the lower courts on remand. At issue
in this case is the proper division between legislative and
executive powers. An examination of the history of those powers
reveals how far our modern separation-of-powers jurisprudence has
departed from the original meaning of the Constitution.
II
The allocation of powers in the Constitution is absolute,
Perez,
post, at 5–8 (opinion of Thomas, J.), but it
does not follow that there is no overlap between the three
categories of governmental power. Certain functions may be
performed by two or more branches without either exceeding its
enumerated powers under the Constitution. Resolution of claims
against the Government is the classic example. At least when
Congress waives its sovereign immunity, such claims may be heard by
an Article III court, which adjudicates such claims by an exercise
of judicial power. See
Ex parte Bakelite Corp.,279
U. S. 438,452 (1929). But Congress may also provide for an
executive agency to adjudicate such claims by an exercise of
executive power. See
ibid. Or Congress may resolve the
claims itself, legislating by special Act. See
ibid. The
question is whether the particular function requires the exercise
of a certain type of power; if it does, then only the branch in
which that power is vested can perform it. For example, although
this Court has long recognized that it does not necessarily violate
the Constitution for Congress to authorize another branch to make a
determination that it could make itself, there are certain core
functions that require the exercise of legislative power and that
only Congress can perform.
Wayman v.
Southard, 10
Wheat. 1, 43 (1825) (distinguishing between those functions
Congress must perform itself and those it may leave to an-other
branch).
The function at issue here is the formulation of gener-ally
applicable rules of private conduct. Under the original
understanding of the Constitution, that function requires the
exercise of legislative power. By corollary, the discretion
inherent in executive power does
not comprehend the
discretion to formulate generally applicable rules of private
conduct.
A
The idea that the Executive may not formulate generally
applicable rules of private conduct emerged even before the theory
of the separation of powers on which our Constitution was
founded.
The idea has ancient roots in the concept of the “rule of law,”
which has been understood since Greek and Roman times to mean that
a ruler must be subject to the law in exercising his power and may
not govern by will alone. M. Vile, Constitutionalism and the
Separation of Powers 25 (2d ed. 1998); 2 Bracton, De Legibus et
Consuetudinibus Angliae 33 (G. Woodbine ed., S. Thorne transl.
1968). The principle that a ruler must govern according to law
“presupposes at least two distinct operations, the making of law,
and putting it into effect.” Vile,
supra, at 24. Al-though
it was originally thought “that the rule of law was satisfied if a
king made good laws and always acted according to them,” it became
increasingly apparent over time that the rule of law demanded that
the operations of “making” law and of “putting it into effect” be
kept separate. W. Gwyn, The Meaning of the Separation of Powers 35
(1965); see also
id., at 8–9. But when the King’s power was
at its height, it was still accepted that his “principal duty
. . . [was], to govern
his people according to
law.” 1 W. Blackstone, Commentaries on the Laws of England
226 (1765) (Commentaries) (emphasis added).
An early expression of this idea in England is seen in the
“constitutional” law concerning crown proclamations. Even before a
more formal separation of powers came about during the English
Civil War, it was generally thought that the King could not use his
proclamation power to alter the rights and duties of his subjects.
P. Hamburger, Is Administrative Law Unlawful? 33–34 (2014)
(Hamburger). This power could be exercised by the King only in
conjunction with Parliament and was exercised through statutes.
Ibid.; see also M. Hale, The Prerogatives of the King 141,
171–172 (D. Yale ed. 1976). The King might participate in “the
legislative power” by giving his “assent” to laws created by the
“concurrence” of “lords and commons assembled in parliament,” but
he could not of his own accord “make a law or impose a charge.”
Id., at at 141.
In 1539, King Henry VIII secured what might be called a
“delegation” of the legislative power by prevailing on Parliament
to pass the Act of Proclamations. Hamburger 35–36. That Act
declared that the King’s proclamations would have the force and
effect of an Act of Parliament.
Id., at 37. But the Act did
not permit the King to deprive his subjects of their property,
privileges and franchises, or their lives, except as provided by
statutory or common law.
Id., at 37–38. Nor did the Act
permit him to invalidate “ ‘any acts, [or] common laws
standing at [that] time in strength and force.’ ”
Id.,
at 38 (quoting An Act that Proclamations Made by the King Shall be
Obeyed, 31 Hen. VIII, ch. 8, in Eng. Stat. at Large 263
(1539)).
Even this limited delegation of lawmaking power to the King was
repudiated by Parliament less than a decade later. Hamburger 38.
Reflecting on this period in history, David Hume would observe
that, when Parliament “gave to the king’s proclamation the same
force as to a statute enacted by parliament,” it “made by one act a
total subversion of the English constitution.” 3 D. Hume, The
History of England from the Invasion of Julius Ceasar to the
Revolution in 1688, p. 266 (1983). By the 17th century, when
English scholars and jurists began to articulate a more formal
theory of the separation of powers, delegations of the type
afforded to King Henry VIII were all but unheard of. Hale,
supra, at 172–173.
This is not to say that the Crown did not endeavor to exercise
the power to make rules governing private conduct. King James I
made a famous attempt, see
Perez,
post, at 14
(opinion of Thomas, J.), prompting the influential jurist Chief
Justice Edward Coke to write that the King could not “change any
part of the common law, nor create any offence by his proclamation,
which was not an offence before, without Parliament.”
Case of
Proclamations, 12 Co. Rep. 74, 75, 77 Eng. Rep. 1352, 1353 (K.
B. 1611). Coke associated this principle with Chapter 39 of the
Magna Carta,[
1] which he understood to guarantee
that no subject would be deprived of a private right—that is, a
right of life, liberty, or property—except in accordance with “the
law of the land,” which consisted only of statu-tory and common
law. Chapman & McConnell, Due Process as Separation of Powers,
121 Yale L. J. 1672, 1688 (2012). When the King attempted to
fashion rules of private conduct unilaterally, as he did in the
Case of Proclamations, the resulting enforcement action
could not be said to accord with “the law of the land.”
John Locke echoed this view. “[F]reedom of men under
government,” he wrote, “is to have a standing rule to live by,
common to every one of that society, and made by the
legislative
power erected in it . . . and not to be subject to
the inconstant, uncertain, unknown, arbitrary will of another man.”
J. Locke, Second Treatise of Civil Government §22, p. 13 (J.
Gough ed. 1947) (Locke) (emphasis added). It followed that this
freedom required that the power to make the standing rules and the
power to enforce them not lie in the same hands. See
id.,
§143, at 72. He further concluded that “[t]he legislative c[ould
not] transfer the power of making laws to any other hands: for it
being but a delegated power from the people, they who have it
[could not] pass it over to others.”
Id., §141, at
71.[
2]
William Blackstone, in his Commentaries, likewise maintained
that the English Constitution required that no subject be deprived
of core private rights except in accordance with the law of the
land. See 1 Commentaries 129, 134, 137–138. He defined a “law” as a
generally applicable “rule of civil conduct prescribed by the
supreme power in a state, commanding what is right and prohibiting
what is wrong.”
Id., at 44 (internal quotation marks
omitted). And he defined a tyrannical government as one in which
“the right both of
making and of
enforcing the laws,
is vested in one and the same man, or one and the same body of
men,” for “wherever these two powers are united together, there can
be no public liberty.”
Id., at 142. Thus, although
Blackstone viewed Parliament as sovereign and capable of changing
the constitution,
id., at 156, he thought a delegation of
lawmaking power to be “disgrace[ful],” 4
id., at 424; see
also Hamburger 39, n. 17.
B
These principles about the relationship between private rights
and governmental power profoundly influenced the men who crafted,
debated, and ratified the Constitution. The document itself and the
writings surrounding it reflect a conviction that the power to make
the law and the power to enforce it must be kept separate,
particularly with respect to the regulation of private conduct.
The Framers’ dedication to the separation of powers has been
well-documented, if only half-heartedly honored. See,
e.g.,
Mistretta v.
United States,488 U. S. 361–381
(1989). Most famously, in The Federalist 47, Madison wrote that
“[n]o political truth is certainly of greater intrinsic value, or
is stamped with the authority of more enlightened patrons of
liberty than” the separation of powers. The Federalist No. 47, p.
301 (C. Rossiter ed. 1961). “The accumulation of all powers,
legislative, executive, and judiciary, in the same hands,
. . . may justly be pronounced the very definition of
tyranny.”
Ibid.; see also
Perez,
post, at 7–8
(opinion of Thomas, J.).
This devotion to the separation of powers is, in part, what
supports our enduring conviction that the Vesting Clauses are
exclusive and that the branch in which a power is vested may not
give it up or otherwise reallocate it. The Framers were concerned
not just with the starting allocation, but with the “gradual
concentration of the several powers in the same department.” The
Federalist No. 51, at 321 (J. Madison). It was this fear that
prompted the Framers to build checks and balances into our
constitutional structure, so that the branches could defend their
powers on an ongoing basis.
Ibid.; see also
Perez,
post, at 7 (opinion of Thomas, J.).
In this sense, the founding generation did not subscribe to
Blackstone’s view of parliamentary supremacy. Parliament’s
violations of the law of the land had been a significant complaint
of the American Revolution, Chapman & McConnell,
supra,
at 1699–1703. And experiments in legislative supremacy in the
States had confirmed the idea that even the legislature must be
made subject to the law.
Perez,
post, at 6–7 (opinion
of Thomas, J.). James Wilson explained the Constitution’s break
with the legislative supremacy model at the Pennsylvania
ratification convention:
“Sir William Blackstone will tell you, that in Britain
. . . the Parliament may alter the form of the
government; and that its power is absolute, without control. The
idea of a constitution, limiting and superintending the operations
of legislative authority, seems not to have been accurately
understood in Britain. . . .
“To control the power and conduct of the legislature, by an
overruling constitution, was an improvement in the science and
practice of government reserved to the American states.” 2 J.
Elliot, Debates on the Federal Constitution 432 (2d ed. 1863); see
also 4
id., at 63(A. Maclaine) (contrasting Congress, which
“is to be guided by the Constitution” and “cannot travel beyond its
bounds,” with the Parliament described in Blackstone’s
Commentaries).
As an illustration of Blackstone’s contrasting model of
sovereignty, Wilson cited the Act of Proclamations, by which
Parliament had delegated legislative power to King Henry VIII. 2
id., at 432 (J. Wilson); see
supra, at 6.
At the center of the Framers’ dedication to the separation of
powers was individual liberty. The Federalist No. 47, at 302 (J.
Madison) (quoting Baron de Montesquieu for the proposition that
“ ‘[t]here can be no liberty where the legislative and
executive powers are united in the same person, or body of
magistrates’ ”). This was not liberty in the sense of freedom
from all constraint, but liberty as described by Locke: “to have a
standing rule to live by . . . made by the
legislative
power,” and to be free from “the inconstant, uncertain,
unknown, arbitrary will of another man.” Locke §22, at 13. At
the heart of this liberty were the Lockean private rights: life,
liberty, and property. If a person could be deprived of these
private rights on the basis of a rule (or a will) not enacted by
the legislature, then he was not truly free. See D. Currie, The
Constitution in the Supreme Court: The First One Hundred Years,
1789–1888, p. 272, and n. 268 (1985).[
3]
This history confirms that the core of the legislative power
that the Framers sought to protect from consolidation with the
executive is the power to make “law” in the Blackstonian sense of
generally applicable rules of private conduct.
III
Even with these sound historical principles in mind, classifying
governmental power is an elusive venture.
Wayman, 10 Wheat.,
at 43; The Federalist No. 37, at 228 (J. Madison). But it is no
less important for its difficulty. The “check” the judiciary
provides to maintain our separation of powers is enforcement of the
rule of law through judicial review.
Perez,
post, at
14 (opinion of Thomas, J.). We may not—without imperiling the
delicate balance of our constitutional system—forgo our judicial
duty to ascertain the meaning of the Vesting Clauses and to adhere
to that meaning as the law.
Perez,
post, at
14–16.
We have been willing to check the improper allocation of
executive power, see,
e.g., Free Enterprise Fund,561
U. S. 477;
Metropolitan Washington Airports Authority
v.
Citizens for Abatement of Aircraft Noise, Inc.,501
U. S. 252 (1991), although probably not as often as we should,
see,
e.g., Morrison v.
Olson,487 U. S. 654
(1988). Our record with regard to legislative power has been far
worse.
We have held that the Constitution categorically forbids
Congress to delegate its legislative power to any other body,
Whitman, 531 U. S., at 472, but it has become
increasingly clear to me that the test we have applied to
distinguish legislative from executive power largely abdicates our
duty to enforce that prohibition. Implicitly recognizing that the
power to fashion legally binding rules is legislative, we have
nevertheless classified rulemaking as executive (or judicial) power
when the authorizing statute sets out “an intelligible principle”
to guide the rulemaker’s discretion.
Ibid. Although the
Court may never have intended the boundless standard the
“intelligible principle” test has become, it is evident that it
does not adequately reinforce the Constitution’s allocation of
legislative power. I would return to the original understanding of
the federal legislative power and require that the Federal
Government create generally applicable rules of private conduct
only through the constitutionally prescribed legislative
process.
A
The Court first announced the intelligible principle test in
J. W. Hampton, Jr., & Co. v.
United States,276
U. S. 394 (1928). That case involved a challenge to a tariff
assessed on a shipment of barium dioxide.
Id., at 400. The
rate of the tariff had been set by proclamation of the President,
pursuant to the so-called flexible tariff provision of the Tariff
Act of 1922.
Ibid. That provision authorized the President
to increase or decrease a duty set by the statute if he determined
that the duty did not “ ‘equalize . . . differences
in costs of production [of the item to which the duty applied] in
the United States and the principal competing country.’ ”
Id., at 401 (quoting19 U. S. C. §154 (1925 ed.)).
The importer of the barium dioxide challenged the provision as an
unconstitutional delegation of legislative power to the President.
276 U. S., at 404. Agreeing that Congress could not delegate
legislative power, the Court nevertheless upheld the Act as
constitutional, setting forth the now-famous formulation: “If
Congress shall lay down by legislative act an intelligible
principle to which the person or body authorized to fix such rates
is directed to conform, such legislative action is not a forbidden
delegation of legislative power.”
Id., at 409.
Though worded broadly, the test rested on a narrow foundation.
At the time
J. W. Hampton was decided, most
“delegations” by Congress to the Executive, including the
delegation at issue in that case, had taken the form of conditional
legislation. See
Marshall Field & Co. v.
Clark,143 U. S. 649–689 (1892). That form of
legislation “makes the suspension of certain provisions and the
going into operation of other provisions of an Act of Congress
depend upon the action of the President based upon the occurrence
of subsequent events, or the ascertainment by him of certain facts,
to be made known by his proclamation.”
Id., at 683.
The practice of conditional legislation dates back at least to
the Third Congress in 1794.
Id., at 683–689 (collecting
statutes). It first came before the Court in
Cargo of Brig
Aurora v.
United States, 7 Cranch 382 (1813). There, the
Court considered whether a Presidential proclamation could, by
declaring that France had ceased to violate the neutral commerce of
the United States, reinstate a legislative Act embargoing British
goods.
Id., at 384, 388. The Court concluded that the
proclamation was effective, seeing “no sufficient reaso[n] why the
legislature should not exercise its discretion . . .
either expressly or conditionally, as their judgment should
direct.”
Id., at 388.
At least as defined by the Court in
Field, the practice
of conditional legislation does not seem to call on the President
to exercise a core function that demands an exercise of legislative
power. Congress creates the rule of private conduct, and the
President makes the
factual determination that causes that
rule to go into effect. That type of factual determination seems
similar to the type of factual determination on which an
enforcement action is conditioned: Neither involves an exercise of
policy discretion, and both are subject to review by a court. See
Union Bridge Co. v.
United States,204 U. S.
364,386 (1907) (explaining that, when the Secretary of War
determined whether bridges unreasonably obstruct navigation, he
“could not be said to exercise strictly legislative . . .
power any more, for instance, than it could be said that Executive
officers exercise such power when, upon investigation, they
ascertain whether a particular applicant for a pension belongs to a
class of persons who, under general rules prescribed by Congress,
are entitled to pensions”).
As it happens, however, conditional statutes sometimes did call
for the President to make at least an implicit policy
determination. For example, a 1794 provision entitled “An Act to
authorize the President of the United States to lay, regulate and
revoke Embargoes,” ch. 41,1Stat.372, called on the President to
impose an embargo on shipping “whenever, in his opinion, the public
safety shall so require . . . .”
Ibid. The
statutes at issue in
Field and
J. W. Hampton
could similarly be viewed as calling for built-in policy judgments.
See Schoenbrod, The Delegation Doctrine: Could The Court Give It
Substance? 83 Mich. L. Rev. 1223, 1263–1264 (1985).[
4] Such delegations of policy determinations pose a
constitutional problem because they effectively permit the
President to define some or all of the content of that rule of
conduct. He may do so expressly—by setting out regulations
specifying what conduct jeopardizes “the public safety,” for
example—or implicitly—by drawing distinctions on an ad hoc
basis. In either event, he does so based on a policy judgment that
is not reviewable by the courts, at least to the extent that the
judgment falls within the range of discretion permitted him by the
law. See
id., at 1255–1260.
The existence of these statutes should not be taken to suggest
that the Constitution, as originally understood, would permit such
delegations. The 1794 embargo statute involved the external
relations of the United States, so the determination it authorized
the President to make arguably did not involve an exercise of core
legislative power. See
id., at 1260–1263 (distinguishing the
tariff statute at issue in
Field and
J. W. Hampton on
these grounds).[
5] Moreover, the statute was
never subjected to constitutional scrutiny. And when a statute of
its kind—that is, atariff statute calling for an exercise of policy
judgment—finally came before this Court for consideration in
Field, the Court appeared to understand the statute as
calling for no more than a
factual determination. 143
U. S., at 693. The Court thus did not in that case endorse the
principle that the Executive may fashion generally applicable rules
of private conduct and appears not to have done so until the 20th
century.
More to the point,
J. W. Hampton can be read to adhere to
the “factual determination” rationale from
Field. The Court
concluded its delegation analysis in
J. W. Hampton
not with the “intelligible principle” language, but by
citing to
Field for the proposition that the “Act did not in
any real sense invest the President with the power of legislation,
because nothing involving the expediency or just operation
of such legislation was left to the determination of the
President.” 276 U. S., at 410 (emphasis added);
Field,
143 U. S., at 692 (explaining that an Act did not “in any real
sense, invest the President with the power of legislation”).
Congress had created a “named contin-gency,” and the President “was
the mere agent of the law-making department to ascertain and
declare the event upon which its expressed will was to take
effect.”
J. W. Hampton,
supra, at
410–411
.[
6]
The analysis in
Field and
J. W. Hampton may have
been premised on an incorrect assessment of the statutes before the
Court, see n. 4,
supra, but neither purported to define
executive power as including the discretion to make generally
applicable rules governing private conduct. To the extent that our
modern jurisprudence treats them as sanctioning the “delegation” of
such power, it misunderstands their historical foundations and
expands the Court’s holdings.
B
It is nevertheless true that, at the time
J. W. Hampton
was decided, there was a growing trend of cases upholding statutes
pursuant to which the Executive exercised the power of “making
. . . subordinate rules within prescribed limits.”
Panama Refining Co. v.
Ryan,293 U. S. 388,421
(1935); see also
id., at 429 (collecting cases). These cases
involved executive power to make “binding rules of conduct,” and
they were found valid “as subordinate rules . . . [when]
within the framework of the policy which the legislature ha[d]
sufficiently defined.”
Id., at 428–429. To the extent that
these cases endorsed authorizing the Executive to craft generally
applicable rules of private conduct, they departed from the
precedents on which they pur-ported to rely.
The key decision to which these cases purport to trace their
origin is
Wayman, 10 Wheat. 1, but that decision does not
stand for the proposition those cases suggest. Although it upheld a
statute authorizing courts to set rules governing the execution of
their own judgments,
id., at 50, its reasoning strongly
suggests that rules of private conduct were not the proper subject
of rulemaking by the courts. Writing for the Court, Chief Justice
Marshall surveyed a number of choices that could be left to
rulemaking by the courts, explaining that they concerned only “the
regulation of the conduct of the officer of the Court in giving
effect to its judgments.”
Id., at 45. When it came to
specifying “the mode of obeying the mandate of a writ,” however, he
lamented that “so much of that which may be done by the judiciary,
under the authority of the legislature, seems to be blended with
that for which the legislature must expressly and directly
provide.”
Id., at 46.
This important passage reflects two premises that Chief Justice
Marshall took for granted, but which are disregarded in later
decisions relying on this precedent: First, reflected in his
discussion of “blending” permissible with impermissible discretion,
is the premise that it is not the
quantity, but the
quality, of the discretion that determines whether an
authorization is constitutional. Second, reflected in the contrast
Chief Justice Marshall draws between the two types of rules, is the
premise that the rules “for which the legislature must expressly
and directly provide” are those regulating private conduct rather
than those regulating the conduct of court officers.
Thus, when Chief Justice Marshall spoke about the “difficulty in
discerning the exact limits within which the legislature may avail
itself of the agency of its Courts,”
ibid., he did not refer
to the difficulty in discerning whether the Legislature’s policy
guidance is “sufficiently de-fined,” see
Panama Refining,
supra, at 429, but instead the difficulty in discerning
which rules affected substantive private rights and duties and
which did not. We continue to wrestle with this same distinction
today in our decisions distinguishing between substantive and
procedural rules both in diversity cases and under the Rules
Enabling Act. See,
e.g., Shady Grove Orthopedic Associates,
P. A. v.
Allstate Ins. Co.,559 U. S. 393–407
(2010) (“In the Rules Enabling Act, Congress authorized this Court
to promulgate rules of procedure subject to its review,28
U. S. C. §2072(a), but with the limitation that those
rules ‘shall not abridge, enlarge or modify any substantive right,’
§2072(b)”).[
7]
C
Today, the Court has abandoned all pretense of enforcing a
qualitative distinction between legislative and executive power. To
the extent that the “intelligible principle” test was ever an
adequate means of enforcing that distinction, it has been decoupled
from the historical understanding of the legislative and executive
powers and thus does not keep executive “lawmaking” within the
bounds of inherent executive discretion. See
Whitman, 531
U. S.
, at 487 (Thomas, J., concurring) (“I am not
convinced that the intelligible principle doctrine serves to
prevent all cessions of legislative power”). Perhaps we were led
astray by the optical illusion caused by different branches
carrying out the same functions, believing that the separation of
powers would be substantially honored so long as the encroachment
were not too great. See,
e.g., Loving v.
United
States,517 U. S. 748,773 (1996) (“Separation-of-powers
principles are vindicated, not disserved, by measured cooperation
between two political branches of the Government, each contributing
to a lawful objective through its own processes”). Or perhaps we
deliberately departed from the separation, bowing to the exigencies
of modern Government that were so often cited in cases upholding
challenged delegations of rulemaking authority.[
8] See,
e.g., Mistretta, 488 U. S., at 372
(“[O]ur jurisprudence has been driven by a practical understanding
that in our increasingly complex society, replete with ever
changing and more technical problems, Congress simply cannot do its
job absent an ability to delegate power under broad general
directives”).
For whatever reason, the intelligible principle test now
requires nothing more than a minimal degree of specificity in the
instructions Congress gives to the Executive when it authorizes the
Executive to make rules having the force and effect of law. And
because the Court has “ ‘almost never felt qualified to
second-guess Congress regarding the permissible degree of policy
judgment that can be left to those executing or applying the
law,’ ”
Whitman,
supra, at 474–475 (majority
opinion) (quoting
Mistretta,
supra, at 416 (Scalia,
J., dissenting)), the level of specificity it has required has been
very minimal indeed, see 531 U. S., at 474 (collecting cases
upholding delegations to regulate in the “public interest”). Under
the guise of the intelligible-principle test, the Court has allowed
the Executive to go beyond the safe realm of factual investigation
to make political judgments about what is “unfair” or
“unnecessary.” See,
e.g., American Power & Light Co. v.
SEC,329 U. S. 90–105 (1946). It has permitted the
Executive to make trade-offs between competing policy goals. See,
e.g., Yakus v.
United States,321 U. S. 414–426
(1944) (approving authorization for agency to set prices of
commodities at levels that “will effectuate the [sometimes
conflicting] purposes of th[e] Act”); see also
Industrial Union
Dept., AFL–CIO v.
American Petroleum Institute,448
U. S. 607–687 (1980) (Rehnquist, J., concurring in judgment)
(“It is difficult to imagine a more obvious example of Congress
simply avoiding a choice which was both fundamental for purposes of
the statute and yet politically so divisive that the necessary
decision or compromise was difficult, if not impossible, to hammer
out in the legislative forge”). It has even permitted the Executive
to decide which policy goals it wants to pursue.
Entergy
Corp. v.
Riverkeeper, Inc.,556 U. S. 208–223 (2009)
(concluding that Congress gave the Environmental Protection Agency
(EPA) discretion to decide whether it should consider costs in
making certain rules). And it has given sanction to the Executive
to craft significant rules of private conduct. See,
e.g.,
Whitman, 531 U. S., at 472–476 (approving delegation to
EPA to set national standards for air quality); see also
id., at 488–489 (Stevens, J., concurring in part and
concurring in judgment) (arguing that the Clean Air Act effects a
delegation of legislative power because it authorizes EPA to make
prospective, generally applicable rules of conduct).
Our reluctance to second-guess Congress on the
degree of
policy judgment is understandable; our mistake lies in assuming
that
any degree of policy judgment is permis-sible when it
comes to establishing generally applicable rules governing private
conduct. To understand the “intelligible principle” test as
permitting Congress to delegate policy judgment in this context is
to divorce that test from its history. It may never be possible
perfectly to distinguish between legislative and executive power,
but that does not mean we may look the other way when the
Government asks us to apply a legally binding rule that is not
enacted by Congress pursuant to Article I.
We should return to the original meaning of the Constitution:
The Government may create generally applicable rules of private
conduct only through the proper exercise of legislative power. I
accept that this would inhibit the Government from acting with the
speed and efficiency Congress has sometimes found desirable. In
anticipating that result and accepting it, I am in good company.
John Locke, for example, acknowledged that a legislative body “is
usually too numerous, and so too slow for the dispatch requisite to
execution.” Locke §160, at 80. But he saw that as a benefit for
legislation, for he believed that the creation of rules of private
conduct should be an irregular and infrequent occurrence. See
id., §143, at 72. The Framers, it appears, were inclined to
agree. As Alexander Hamilton explained in another context, “It may
perhaps be said that the power of preventing bad laws includes that
of preventing good ones . . . . But this objection
will have little weight with those who can properly estimate the
mischiefs of that inconstancy and mutability in the laws, which
form the greatest blemish in the character and genius of our
governments.” The Federalist No. 73, at 443–444. I am comfortable
joining his conclusion that “[t]he injury which may possibly be
done by defeating a few good laws will be amply compensated by the
advantage of preventing a number of bad ones.”
Id., at
444.
IV
Although the majority corrects an undoubted error in the framing
of the delegation dispute below, it does so without placing that
error in the context of the constitutional provisions that govern
respondent’s challenge to §207 of the PRIIA.
A
Until the case arrived in this Court, the parties pro-ceeded on
the assumption that Amtrak is a private entity, albeit one subject
to an unusual degree of governmental control.[
9]
The Court of Appeals agreed. 721 F. 3d 666, 674–677 (CADC
2013). Because it also concluded that Congress delegated regulatory
power to Amtrak,
id., at 670–674, and because this Court has
held that delegations of regulatory power to private parties are
impermissible,
Carter v.
Carter Coal Co.,298
U. S. 238,311 (1936), it held the delegation to be
unconstitutional, 721 F. 3d, at 677.
Although no provision of the Constitution expressly forbids the
exercise of governmental power by a private entity, our so-called
“private nondelegation doctrine” flows logically from the three
Vesting Clauses. Because a private entity is neither Congress, nor
the President or one of his agents, nor the Supreme Court or an
inferior court established by Congress, the Vesting Clauses would
categorically preclude it from exercising the legislative,
executive, or judicial powers of the Federal Government. In short,
the “private nondelegation doctrine” is merely one application of
the provisions of the Constitution that forbid Congress to allocate
power to an ineligible entity, whether governmental or private.
For this reason, a conclusion that Amtrak is private—that is,
not part of the Government at all—would necessarily mean that it
cannot exercise these three categories of governmental power. But
the converse is not true: A determination that Amtrak acts as a
governmental entity in crafting the metrics and standards says
nothing about whether it properly exercises governmental power when
it does so. An entity that “was created by the Government, is
controlled by the Government, and operates for the Government’s
benefit,”
ante, at 10 (majority opinion), but that is not
properly constituted to exercise a power under one of the Vesting
Clauses, is no better qualified to be a delegatee of that power
than is a purely private one. To its credit, the majority does not
hold otherwise. It merely refutes the Court of Appeals’ premise
that Amtrak is private. But this answer could be read to suggest,
wrongly, that our conclusion about Amtrak’s status has some
constitutional significance for “delegation” purposes.
B
The first step in the Court of Appeals’ analysis on remand
should be to classify the power that §207 purports to authorize
Amtrak to exercise. The second step should be to determine whether
the Constitution’s requirements for the exercise of that power have
been satisfied.
1
Under the original understanding of the legislative and
executive power, Amtrak’s role in the creation of metrics and
standards requires an exercise of legislative power because it
allows Amtrak to decide the applicability of standards that provide
content to generally applicable rules of private conduct.
Specifically, the metrics and standards alter the railroads’
common-carrier obligations under49 U. S. C. §11101. Host
railroads may enter into contracts with Amtrak under §§10908 and
24308 to fulfill their common-carrier obligations. The metrics and
standards shape the types of contracts that satisfy the
common-carrier obligations because §207 provides that “Amtrak and
its host rail carriers
shall” include the metrics and
standards in their contracts “[t]o the extent practicable.” PRIIA
§207(c),49 U.S.C. §24101 (note) (emphasis added). As Justice Alito
explains, it matters little that the railroads may avoid
incorporating the metrics and standards by arguing that
incorporation is impracticable; the point is that they have a legal
duty to try—a duty the substance of which is defined by the metrics
and standards. See
ante, at 3–4 (concurring opinion). And
that duty is backed up by the Surface Transportation Board’s
coercive power to impose “reasonable terms” on host railroads when
they fail to come to an agreement with Amtrak. §24308(a)(2)(A)(ii).
Presumably, when it is “practicable” to incorporate the metrics and
standards, the Board is better positioned to deem such terms
“reasonable” and to force them upon the railroads.
Although the Government’s argument to the contrary will
presumably change now that the Court has held that Amtrak is a
governmental entity, it argued before this Court that Amtrak did
not exercise meaningful power because other “governmental entities
had sufficient control over the development and adoption of the
metrics and standards.” Brief for Petitioners 19–26. For support,
the Government relied on two questionable precedents in which this
Court held that Congress may grant private actors the power to
determine whether a government regulation will go into effect:
Currin v.
Wallace,306 U. S. 1 (1939), and
United States v.
Rock Royal Co-operative, Inc.,307
U. S. 533 (1939). Those precedents reason that it does not
require an exercise of legislative power to decide whether and when
legally binding rules of private conduct will go into effect.
Currin,
supra, at 16–18;
Rock Royal,
supra, at 574–577. But as I have explained above, to the
extent that this decision involves an exercise of policy
discretion, it requires an exercise of legislative power.
Supra, at 21–22. In any event, these precedents are directly
contrary to our more recent holding that a discretionary “veto”
necessarily involves an exercise of legislative power. See
INS v.
Chadha, 462 U. S., at 952–953; see also
id., at 987 (White, J., dissenting) (noting that the power
Congress reserved to itself was virtually identical to the power it
conferred on private parties in
Currin and
Rock
Royal). As such,
Currin and
Rock Royal have been
discredited and lack any force as precedents.
Section 207 therefore violates the Constitution. Article I, §1,
vests the legislative power in Congress, and Amtrak is not
Congress. The procedures that §207 sets forth for enacting the
metrics and standards also do not comply with bicameralism and
presentment. Art. I, §7. For these reasons, the metrics and
standards promulgated under this provision are invalid.
2
I recognize, of course, that the courts below will be bound to
apply our “intelligible principle” test. I recognize, too, that
that test means so little that the courts are likely to conclude
that §207 calls for nothing more than the exercise of executive
power. Having made that determination, the Court of Appeals must
then determine whether Amtrak is constitutionally eligible to
exercise executive power.
As noted, Article II of the Constitution vests the executive
power in a “President of the United States of Amer-ica.” Art. II,
§1. Amtrak, of course, is not the President of the United States,
but this fact does not immediately disqualify it from the exercise
of executive power. Congress may authorize subordinates of the
President to exercise such power, so long as they remain subject to
Presidential control.
The critical question, then, is whether Amtrak is adequately
subject to Presidential control. See
Myers, 272 U. S.,
at 117. Our precedents treat appointment and removal powers as the
primary devices of executive control,
Free Enterprise Fund,
561 U. S., at 492, and that should be the starting point of
the Court of Appeals’ analysis. As Justice Alito’s concurrence
demonstrates, however, there are other constitutional requirements
that the Court of Appeals should also scrutinize in deciding
whether Amtrak is constitutionally eligible to exercise the power
§207 confers on it.
* * *
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 thecost
is to our Constitution and the individual liberty it protects.
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