Supreme Court to Consider Delegation to Private Parties

The Supreme Court has granted review in Department of Transportation v. Association of American Railroads.  The case involves section 207 of the Passenger Rail Investment and Improvement Act of 2008, which requires Amtrak and the Federal Railroad Administation to measure compliance by freight railroads with their statutory obligation to provide preference for passenger rail. If the FRA and Amtrak cannot agree on the measurement standards the Surface Transportation Board is empowered to appoint an arbitrator to establish those standards.  The D.C. Circuit held that this was an impermissible delegation of governmental power to a private entity.  My article on this topic is at 17 Green Bag 2d 157 (2014).  Bottom line: I think it is unconstitutional to delegate regulatory or legislative power to private entities.  The most interesting issue is whether this conclusion flows from the non-delegation doctrine itself or from due process principles.