Cite as: 575 U. S. ____ (2015)


ALITO, J., concurring


No. 13-1080



[March 9, 2015]

JUSTICE ALITO, concurring.

I entirely agree with the Court that Amtrak is "a federal actor or instrumentality," as far as the Constitution is concerned. Ante, at 11. "Amtrak was created by the Government, is controlled by the Government, and operates for the Government's benefit." Ante, at 10. The Government even "specif[ies] many of its day-to-day operations" and "for all practical purposes, set[s] and supervise[s] its annual budget." Ante, at 11. The District of Columbia Circuit understandably heeded 49 U. S. C. §24301(a)(3), which proclaims that Amtrak "is not a department, agency, or instrumentality of the United States Government," but this statutory label cannot control for constitutional purposes. (Emphasis added). I therefore join the Court's opinion in full. I write separately to discuss what follows from our judgment.


This case, on its face, may seem to involve technical issues, but in discussing trains, tracks, metrics, and standards, a vital constitutional principle must not be forgotten: Liberty requires accountability.

When citizens cannot readily identify the source of legislation or regulation that affects their lives, Government officials can wield power without owning up to the consequences. One way the Government can regulate without accountability is by passing off a Government operation as an independent private concern. Given this incentive to regulate without saying so, everyone should pay close attention when Congress "sponsor[s] corporations that it specifically designate[s] not to be agencies or establishments of the United States Government." Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, 390 (1995).

Recognition that Amtrak is part of the Federal Govern ment raises a host of constitutional questions.


I begin with something that may seem mundane on its face but that has a significant relationship to the principle of accountability. Under the Constitution, all officers of the United States must take an oath or affirmation to support the Constitution and must receive a commission. See Art. VI, cl. 3 ("[A]ll executive and judicial Officers … shall be bound by Oath or Affirmation, to support this Constitution"); Art. II, §3, cl. 6 (The President "shall Commission all the Officers of the United States"). There is good reason to think that those who have not sworn an oath cannot exercise significant authority of the United States. See 14 Op. Atty. Gen. 406, 408 (1874) ("[A] Representative . . . does not become a member of the House until he takes the oath of office"); 15 Op. Atty. Gen. 280, 281 (1877) (similar).* And this Court certainly has never treated a commission from the President as a mere wall ornament. See, e.g., Marbury v. Madison, 1 Cranch 137, 156 (1803); see also id., at 179 (noting the importance of an oath).

Both the Oath and Commission Clauses confirm an important point: Those who exercise the power of Government are set apart from ordinary citizens. Because they exercise greater power, they are subject to special restraints. There should never be a question whether someone is an officer of the United States because, to be an officer, the person should have sworn an oath and possess a commission.

Here, respondent tells the Court that "Amtrak's board members do not take an oath of office to uphold the Constitution, as do Article II officers vested with rulemaking authority." Brief for Respondent 47. The Government says not a word in response. Perhaps there is an answer. The rule, however, is clear. Because Amtrak is the Government, ante, at 11, those who run it need to satisfy basic constitutional requirements.


I turn next to the Passenger Rail Investment and Improvement Act of 2008's (PRIIA) arbitration provision. 122 Stat. 4907. Section 207(a) of the PRIIA provides that "the Federal Railroad Administration [(FRA)] and Amtrak shall jointly . . . develop new or improve existing metrics and minimum standards for measuring the performance and service quality of intercity passenger train operations." Id., at 4916. In addition, §207(c) commands that "[t]o the extent practicable, Amtrak and its host rail carriers shall incorporate [those] metrics and standards … into their access and service agreements." Under §213(a) of the PRIIA, moreover, "the metrics and standards also may play a role in prompting investigations by the [Surface Transportation Board (STB)] and in subsequent enforcement actions." Ante, at 4.

This scheme is obviously regulatory. Section 207 provides that Amtrak and the FRA "shall jointly" create new standards, cf. e.g., 12 U. S. C. §1831m(g)(4)(B) ("The appropriate Federal banking agencies shall jointly issue rules of practice to implement this paragraph"), and that Amtrak and private rail carriers "shall incorporate" those standards into their agreements whenever "practicable," cf. e.g., BP America Production Co. v. Burton, 549 U. S. 84, 88 (2006) (characterizing a command to " 'audit and reconcile, to the extent practicable, all current and past lease accounts' " as creating "duties" for the Secretary of the Interior (quoting 30 U. S. C. §1711(c)(1))). The fact that private rail carriers sometimes may be required by federal law to include the metrics and standards in their contracts by itself makes this a regulatory scheme.

"As is often the case in administrative law," moreover, "the metrics and standards lend definite regulatory force to an otherwise broad statutory mandate." 721 F. 3d 666, 672 (CADC 2013). Here, though the nexus between regulation, statutory mandate, and penalty is not direct (for, as the Government explains, there is a pre-existing requirement that railroads give preference to Amtrak, see Brief for Petitioners 31¶32 (citing 49 U. S. C. §§24308(c), (f )), the metrics and standards inherently have a "coercive effect," Bennett v. Spear, 520 U. S. 154, 169 (1997), on private conduct. Even the United States concedes, with understatement, that there is "perhaps some incentivizing effect associated with the metrics and standards." Brief for Petitioners 30. Because obedience to the metrics and standards materially reduces the risk of liability, railroads face powerful incentives to obey. See Bennett, supra, at 169¶171. That is regulatory power.

The language from §207 quoted thus far should raise red flags. In one statute, Congress says Amtrak is not an "agency." 49 U. S. C. §24301(a)(3). But then Congress commands Amtrak to act like an agency, with effects on private rail carriers. No wonder the D. C. Circuit ruled as it did.

The oddity continues, however. Section 207(d) of the

PRIIA also provides that if the FRA and Amtrak cannot agree about what the regulatory standards should say, then "any party involved in the development of those standards may petition the Surface Transportation Board to appoint an arbitrator to assist the parties in resolving their disputes through binding arbitration." 122 Stat. 4917. The statute says nothing more about this "binding arbitration," including who the arbitrator should be.

Looking to Congress' use of the word "arbitrator," respondent argues that because the arbitrator can be a private person, this provision by itself violates the private nondelegation doctrine. The United States, for its part, urges the Court to read the term "arbitrator" to mean "public arbitrator" in the interests of constitutional avoidance.

No one disputes, however, that the arbitration provision is fair game for challenge, even though no arbitration occurred. The obvious purpose of the arbitration provision was to force Amtrak and the FRA to compromise, or else a third party would make the decision for them. The D. C. Circuit is correct that when Congress enacts a compromise forcing mechanism, it is no good to say that the mechanism cannot be challenged because the parties compromised. See 721 F. 3d, at 674. "[S]tack[ing] the deck in favor of compromise" was the whole point. Ibid. Unsurprisingly, this Court has upheld standing to bring a separation-of-powers challenge in comparable circumstances. See Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252, 264¶265 (1991) ("[T]his 'personal injury' to respondents is 'fairly traceable' to the Board of Review's veto power because knowledge that the master plan was subject to the veto power undoubtedly influenced MWAA's Board of Directors" (emphasis added)); see also Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 512, n. 12 (2010) ("We cannot assume . . . that the Chairman would have made the same appointments acting alone").

As to the merits of this arbitration provision, I agree with the parties: If the arbitrator can be a private person, this law is unconstitutional. Even the United States accepts that Congress "cannot delegate regulatory authority to a private entity." 721 F. 3d, at 670. Indeed, Congress, vested with enumerated "legislative Powers," Art. I, §1, cannot delegate its "exclusively legislative" authority at all. Wayman v. Southard, 10 Wheat. 1, 42¶43 (1825) (Marshall, C. J.). The Court has invalidated statutes for that very reason. See A. L. A. Schechter Poultry Corp. v. United States; 295 U. S. 495 (1935); Panama Refining Co. v. Ryan, 293 U. S. 388 (1935); see also Mistretta v. United States, 488 U. S. 361, 373, n. 7 (1989) (citing, inter alia, Industrial Union Dept., AFL¶CIO v. American Petroleum Institute, 448 U. S. 607, 646 (1980)).

The principle that Congress cannot delegate away its vested powers exists to protect liberty. Our Constitution, by careful design, prescribes a process for making law, and within that process there are many accountability checkpoints. See INS v. Chadha, 462 U. S. 919, 959 (1983). It would dash the whole scheme if Congress could give its power away to an entity that is not constrained by those checkpoints. The Constitution's deliberative process was viewed by the Framers as a valuable feature, see, e.g., Manning, Lawmaking Made Easy, 10 Green Bag 2d 202 (2007) ("[B]icameralism and presentment make lawmaking difficult by design" (citing, inter alia, The Federalist No. 62, p. 378 (J. Madison), and No. 63, at 443¶444 (A. Hamilton))), not something to be lamented and evaded.

Of course, this 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 v. American Trucking Assns., Inc., 531 U. S. 457, 474¶475 (2001) (quoting Mistretta, supra, at 416 (SCALIA, J., dissenting)). But the inherent difficulty of line-drawing is no excuse for not enforcing the Constitution. Rather, the formal reason why the Court does not enforce the nondelegation doctrine with more vigilance is that the other branches of Government have vested powers of their own that can be used in ways that resemble lawmaking. See, e.g., Arlington v. FCC, 569 U. S. ___, ___¶___, n. 4 (2013) (slip op., at 13¶14, n. 4) (explaining that agency rulemakings "are exercises of—indeed, under our constitutional structure they must be exercises of—the 'executive Power' " (quoting Art. II, §1, cl. 1)). Even so, "the citizen confronting thousands of pages of regulations—promulgated by an agency directed by Congress to regulate, say, 'in the public interest'—can perhaps be excused for thinking that it is the agency really doing the legislating." 569 U. S., at ___¶___ (ROBERTS, C. J., dissenting) (slip op., at 4¶5).

When it comes to private entities, however, there is not even a fig leaf of constitutional justification. Private entities are not vested with "legislative Powers." Art. I, §1. Nor are they vested with the "executive Power," Art. II, §1, cl. 1, which belongs to the President. Indeed, it raises "[d]ifficult and fundamental questions" about "the delegation of Executive power" when Congress authorizes citizen suits. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 197 (2000) (KENNEDY, J., concurring). A citizen suit to enforce existing law, however, is nothing compared to delegated power to create new law. By any measure, handing off regulatory power to a private entity is "legislative delegation in its most obnoxious form." Carter v. Carter Coal Co., 298 U. S. 238, 311 (1936).

For these reasons, it is hard to imagine how delegating "binding" tie-breaking authority to a private arbitrator to resolve a dispute between Amtrak and the FRA could be constitutional. No private arbitrator can promulgate binding metrics and standards for the railroad industry. Thus, if the term "arbitrator" refers to a private arbitrator, or even the possibility of a private arbitrator, the Constitution is violated. See 721 F. 3d, at 674 ("[T]hat the recipients of illicitly delegated authority opted not to make use of it is no antidote. It is Congress's decision to delegate that is unconstitutional" (citing Whitman, supra, at 473)).

As I read the Government's briefing, it does not dispute any of this (other than my characterization of the PRIIA as regulatory, which it surely is). Rather than trying to defend a private arbitrator, the Government argues that the Court, for reasons of constitutional avoidance, should read the word "arbitrator" to mean "public arbitrator." The Government's argument, however, lurches into a new problem: Constitutional avoidance works only if the statute is susceptible to an alternative reading and that such an alternative reading would itself be constitutional.

Here, the Government's argument that the word "arbitrator" does not mean "private arbitrator" is in some tension with the ordinary meaning of the word. Although Government arbitrators are not unheard of, we usually think of arbitration as a form of "private dispute resolution." See, e.g., Stolt-Nielsen S. A. v. AnimalFeeds Int'l Corp., 559 U. S. 662, 685 (2010).

Likewise, the appointment of a public arbitrator here would raise serious questions under the Appointments Clause. Unless an "inferior Office[r]" is at issue, Article II of the Constitution demands that the President appoint all "Officers of the United States" with the Senate's advice and consent. Art. II, §2, cl. 2. This provision ensures that those who exercise the power of the United States are accountable to the President, who himself is accountable to the people. See Free Enterprise Fund, 561 U. S., at 497¶498 (citing The Federalist No. 72, p. 487 (J. Cooke ed. 1961) (A. Hamilton)). The Court has held that someone "who exercis[es] significant authority pursuant to the laws of the United States" is an "Officer," Buckley v. Valeo, 424 U. S. 1, 126 (1976) (per curiam), and further that an officer who acts without supervision must be a principal officer, see Edmond v. United States, 520 U. S. 651, 663 (1997) ("[W]e think it evident that 'inferior officers' are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate"). While some officers may be principal even if they have a supervisor, it is common ground that an officer without a supervisor must be principal. See id., at 667 (Souter, J., concurring in part and concurring in judgment).

Here, even under the Government's public-arbitrator theory, it looks like the arbitrator would be making law without supervision—again, it is "binding arbitration." Nothing suggests that those words mean anything other than what they say. This means that an arbitrator could set the metrics and standards that "shall" become part of a private railroad's contracts with Amtrak whenever "practicable." As to that "binding" decision, who is the supervisor? Inferior officers can do many things, but nothing final should appear in the Federal Register unless a Presidential appointee has at least signed off on it. See 75 Fed. Reg. 26839 (2010) (placing the metrics and standards in the Federal Register); Edmond, supra, at 665.


Finally, the Board of Amtrak, and, in particular, Amtrak's president, also poses difficult constitutional problems. As the Court observes, "Amtrak's Board of Directors is composed of nine members, one of whom is the Secretary of Transportation. Seven other Board members are appointed by the President and confirmed by the Senate. These eight Board members, in turn, select Amtrak's president." Ante, at 7 (citation omitted). In other words, unlike everyone else on the Board, Amtrak's president has not been appointed by the President and confirmed by the Senate.

As explained above, accountability demands that principal officers be appointed by the President. See Art. II, §2, cl. 2. The President, after all, must have "the general administrative control of those executing the laws," Myers v. United States, 272 U. S. 52, 164 (1926), and this principle applies with special force to those who can "exercis[e] significant authority" without direct supervision, Buckley, supra, at 126; see also Edmond, supra, at 663. Unsurprisingly then, the United States defends the non-Presidential appointment of Amtrak's president on the ground that the Amtrak president is merely an inferior officer. Given Article II, for the Government to argue anything else would be surrender.

This argument, however, is problematic. Granted, a multimember body may head an agency. See Free Enterprise Fund, supra, at 512¶513. But those who head agencies must be principal officers. See Edmond, supra, at 663. It would seem to follow that because agency heads must be principal officers, every member of a multimember body heading an agency must also be a principal officer. After all, every member of a multimember body could cast the deciding vote with respect to a particular decision. One would think that anyone who has the unilateral authority to tip a final decision one way or the other cannot be an inferior officer.

The Government's response is tucked away in a footnote. It contends that because Amtrak's president serves at the pleasure of the other Board members, he is only an inferior officer. See Reply Brief for Petitioners 14, n. 6. But the Government does not argue that the president of Amtrak cannot cast tie-breaking votes. Assuming he can vote when the Board of Directors is divided, it makes no sense to think that the side with which the president agrees will demand his removal.

In any event, even assuming that Amtrak's president could be an inferior officer, there would still be another problem: Amtrak's Board may lack constitutional authority to appoint inferior officers. The Appointments Clause provides an exception from the ordinary rule of Presidential appointment for "inferior Officers," but that exception has accountability limits of its own, namely, that Congress may only vest the appointment power "in the President alone, in the Courts of Law, or in the Heads of Departments." Art. II, §2, cl. 2. Although a multimember body like Amtrak's Board can head a Department, here it is not at all clear that Amtrak is a Department.

A "Department" may not be "subordinate to or contained within any other such component" of the Executive Branch. Free Enterprise Fund, 561 U. S., at 511. As explained above, however, in jointly creating metrics and standards, Amtrak may have to give way to an arbitrator appointed by the STB. Does that mean that Amtrak is "subordinate to" the STB? See also 49 U. S. C. §24308 (explaining the STB's role in disputes between Amtrak and rail carriers). At the same time, the Secretary of Transportation sits on Amtrak's Board and controls some aspects of Amtrak's relationship with rail carriers. See, e.g., §§24302(a)(1), 24309(d)(2). The Secretary of Transportation also has authority to exempt Amtrak from certain statutory requirements. See §24305(f)(4). Does that mean that Amtrak is "subordinate to or contained within" the Department of Transportation? (The STB, of course, also may be "subordinate to or contained within" the Department of Transportation. If so, this may further suggest that that Amtrak is not a Department, and also further undermine the STB's ability to appoint an arbitrator). All of these are difficult questions.

* * *

In sum, while I entirely agree with the Court that

Amtrak must be regarded as a federal actor for constitutional purposes, it does not by any means necessarily follow that the present structure of Amtrak is consistent with the Constitution. The constitutional issues that I have outlined (and perhaps others) all flow from the fact that no matter what Congress may call Amtrak, the Constitution cannot be disregarded.

* It is noteworthy that the first statute enacted by Congress was "An Act to regulate the Time and Manner of administering certain Oaths." Act of June 1, 1789, ch. 1, §1, 1 Stat. 23.