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Reviving an old constitutional idea?

It has been almost eighty years since the Supreme Court struck down a federal law because a private organization was wrongly using the powers of government, but on Monday the Court said it would consider anew that nearly abandoned approach.   It will do so in a case involving the quality of rail passenger service on the Amtrak system.

That was one of three new cases the Court agreed on Monday to hear, with decisions expected in the Term that opens next October.  In the others, the Court is to decide what proof that federal prosecutors must offer to get a longer sentence when an alleged robber draws someone else into the crime, resulting in injury or death (Whitfield v. United States), and will rule on whether a jury or a judge should decide the right of an owner of an older trademark to update it and still keep its legal status (Hana Financial v. Hana Bank).

The Amtrak case (U.S. Department of Transportation v. Association of American Railroads) led to a decision by the U.S. Court of Appeals for the District of Columbia Circuit that Amtrak was given too much of a role in writing performance standards for the operation of its rail passenger trains.    The Department’s appeal is an attempt to get the Court to revive a 2009 law, and the performance rules written under that law in 2010, that fell in the D.C. Circuit’s use of the so-called “non-delegation doctrine.”

That doctrine is a constitutional limit on Congress’s authority to hand off to someone else — a private entity or another branch of government — its power to write the nation’s governing laws.    It was used by the Supreme Court repeatedly during New Deal days, in striking down President Franklin Roosevelt’s programs for dealing with the Great Depression.  It has not been used since to nullify any federal law.

The 2008 law at the center of the new case set up a regulatory regime for writing standards for rail passenger service, such as ways to measure on-time departures and arrivals, data on riders’ use of the Amtrak system, the quality of on-board service, and the use of depots and other facilities.

Under that regime, a government agency, the Federal Railroad Administration, and Amtrak itself were given shared roles in writing those standards.  After the final version of the standards came out in May 2010, the Association of American Railroads — a trade group representing the nation’s freight-carrying railroads whose tracks are used, on a priority basis, by Amtrak — sued to challenge them.  It claimed that the role given to Amtrak, especially, violated the non-delegation doctrine.  Ultimately, the D.C. Circuit agreed with that challenge, leading the Transportation Department to seek Supreme Court review.

The Court used its discretion to deny review of new cases in a number of significant new cases on Monday, doing so in each case without saying why.  Here were the main orders denying review:

** Three separate pleas, by New Jersey Governor Chris Christie along with others, seeking to challenge the constitutionality of a 1992 federal law that banned gambling on amateur sports events, except in four states where that already was allowed.  The cases were Christie v. National Collegiate Athletic Association; New Jersey Thoroughbred Horsemen’s Association v. NCAA, and Sweeney v. NCAA.

** The Court refused to interrupt an ongoing trial in a federal court in Madison, Wisconsin, on the constitutionality of a new state law that requires doctors performing abortions to have admitting privileges for their patents at a hospital within thirty miles of the abortion clinic.  State officials asked the Court to block that case entirely, arguing that doctors should not have the right to file a challenge to a state law when they are doing so to represent their patients’ interests, not their own.  The case was Van Hollen v. Planned Parenthood of Wisconsin.  The Wisconsin law is similar to a Texas statute that the Supreme Court refused to block last November; the Texas law has since been upheld by the U.S. Court of Appeals for the Fifth Circuit.

** Accepting the advice of the U.S. Solicitor General to deny review, the Court turned aside a test case on patients’ right to sue in state court over the failure by makers of medical device to warn doctors and patients of harmful side-effects.  That case was Medtronic Inc. v. Stengel.

** The Court left undisturbed a ruling by the U.S. Court of Appeals for the Ninth Circuit that Congress, in a 2006 law restricting the legal rights of detainees held at Guantanamo Bay by the U.S. military, had taken away all of their options to sue to challenge the conditions under which they were kept in military custody.   The case involved a former detainee since released from Guantanamo, Syrian national Abdel Hassan Hamad, who had sued top Pentagon officials and others over alleged torture and other mistreatment during military custody, at Guantanamo and overseas in Afghanistan and Pakistan.  Although the Supreme Court in 2008 struck down a part of the 2006 law curbing federal court jurisdiction, the scope of that decision is somewhat unclear, but the denial of review in the Hamad case will leave it in doubt.  (The case was Hamad v. Gates.)

Recommended Citation: Lyle Denniston, Reviving an old constitutional idea?, SCOTUSblog (Jun. 23, 2014, 2:38 PM),