Department of Transportation v. Association of American Railroads

(Slip Opinion) OCTOBER TERM, 2014 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

DEPARTMENT OF TRANSPORTATION ET AL. v.

ASSOCIATION OF AMERICAN RAILROADS

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT

No. 13–1080. Argued December 8, 2014—Decided March 9, 2015
In 1970, Congress created the National Railroad Passenger Corporation
(Amtrak). Congress has given Amtrak priority to use track systems
owned by the freight railroads for passenger rail travel, at rates
agreed to by the parties or, in case of a dispute, set by the Surface
Transportation Board. And in 2008, Congress gave Amtrak and the
Federal Railroad Administration (FRA) joint authority to issue “met-
rics and standards” addressing the performance and scheduling of
passenger railroad services, see §207(a), 122 Stat. 4907, including
Amtrak’s on-time performance and train delays caused by host rail-
roads. Respondent, the Association of American Railroads, sued peti-
tioners—the Department of Transportation, the FRA, and two offi-
cials—claiming that the metrics and standards must be invalidated
because it is unconstitutional for Congress to allow and direct a pri-
vate entity like Amtrak to exercise joint authority in their issuance.
Its argument rested on the Fifth Amendment Due Process Clause
and the constitutional provisions regarding separation of powers.
The District Court rejected respondent’s claims, but the District of
Columbia Circuit reversed as to the separation of powers claim, rea-
soning in central part that Amtrak is a private corporation and thus
cannot constitutionally be granted regulatory power under §207.
Held: For purposes of determining the validity of the metrics and
standards, Amtrak is a governmental entity. Pp. 6–12.
(a) In concluding otherwise, the Court of Appeals relied on the
statutory command that Amtrak “is not a department, agency, or in-
strumentality of the United States Government,” 49 U. S. C.
§24301(a)(3), and the pronouncement that Amtrak “shall be operated
and managed as a for profit corporation,” §24301(a)(2). But congres-
2 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF
AMERICAN RAILROADS

Syllabus

sional pronouncements are not dispositive of Amtrak’s status as a
governmental entity for purposes of separation of powers analysis
under the Constitution, and an independent inquiry reveals the
Court of Appeals’ premise that Amtrak is a private entity was flawed.
As Amtrak’s ownership and corporate structure show, the political
branches control most of Amtrak’s stock and its Board of Directors,
most of whom are appointed by the President, §24302(a)(1), con-
firmed by the Senate, ibid., and understood by the Executive Branch
to be removable by the President at will. The political branches also
exercise substantial, statutorily mandated supervision over Amtrak’s
priorities and operations. See, e.g., §24315. Also of significance,
Amtrak is required by statute to pursue broad public objectives, see,
e.g., §§24101(b), 24307(a); certain aspects of Amtrak’s day-to-day op-
erations are mandated by Congress, see, e.g., §§24101(c)(6), 24902(b);
and Amtrak has been dependent on federal financial support during
every year of its existence. Given the combination of these unique
features and Amtrak’s significant ties to the Government, Amtrak is
not an autonomous private enterprise. Amtrak was created by the
Government, is controlled by the Government, and operates for the
Government’s benefit. Thus, in jointly issuing the metrics and
standards with the FRA, Amtrak acted as a governmental entity for
separation of powers purposes. And that exercise of governmental
power must be consistent with the Constitution, including those pro-
visions relating to the separation of powers. Pp. 6–10.
(b) Respondent’s reliance on congressional statements about
Amtrak’s status is misplaced. Lebron v. National Railroad Passenger
Corp., 513 U. S. 374, teaches that, for purposes of Amtrak’s status as
a federal actor or instrumentality under the Constitution, the practi-
cal reality of federal control and supervision prevails over Congress’
disclaimer of Amtrak’s governmental status. Treating Amtrak as
governmental for these purposes, moreover, is not an unbridled grant
of authority to an unaccountable actor, for the political branches cre-
ated Amtrak, control its Board, define its mission, specify many of its
day-to-day operations, have imposed substantial transparency and
accountability mechanisms, and, for all practical purposes, set and
supervise its annual budget. Pp. 10–11.
(c) The Court of Appeals may address in the first instance any
properly preserved issues respecting the lawfulness of the metrics
and standards that may remain in this case, including questions im-
plicating the Constitution’s structural separation of powers and the
Appointments Clause. Pp. 11–12.
721 F. 3d 666, vacated and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
 Cite as: 575 U. S. ____ (2015) 3

Syllabus

C. J., and SCALIA, GINSBURG, BREYER, ALITO, SOTOMAYOR, and KAGAN,
JJ., joined. ALITO, J., filed a concurring opinion. THOMAS, J., filed an
opinion concurring in the judgment.
 Cite as: 575 U. S. ____ (2015) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 13–1080
_________________

DEPARTMENT OF TRANSPORTATION, ET AL.,

PETITIONERS v. ASSOCIATION OF

AMERICAN RAILROADS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

[March 9, 2015]

JUSTICE KENNEDY delivered the opinion of the Court.
In 1970, Congress created the National Railroad Pas­
senger Corporation, most often known as Amtrak. Later,
Congress granted Amtrak and the Federal Railroad Ad­
ministration (FRA) joint authority to issue “metrics and
standards” that address the performance and scheduling
of passenger railroad services. Alleging that the metrics
and standards have substantial and adverse effects upon
its members’ freight services, respondent—the Association
of American Railroads—filed this suit to challenge their
validity. The defendants below, petitioners here, are the
Department of Transportation, the FRA, and two individ­
uals sued in their official capacity.
Respondent alleges the metrics and standards must be
invalidated on the ground that Amtrak is a private entity
and it was therefore unconstitutional for Congress to allow
and direct it to exercise joint authority in their issuance.
This argument rests on the Fifth Amendment Due Process
Clause and the constitutional provisions regarding separa­
tion of powers. The District Court rejected both of re­
2 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF
AMERICAN RAILROADS

Opinion of the Court

spondent’s claims. The Court of Appeals for the District of
Columbia Circuit reversed, finding that, for purposes of
this dispute, Amtrak is a private entity and that Congress
violated nondelegation principles in its grant of joint
authority to Amtrak and the FRA. On that premise the
Court of Appeals invalidated the metrics and standards.
Having granted the petition for writ of certiorari, 573
U. S. ___ (2014), this Court now holds that, for purposes of
determining the validity of the metrics and standards,
Amtrak is a governmental entity. Although Amtrak’s
actions here were governmental, substantial questions
respecting the lawfulness of the metrics and standards—
including questions implicating the Constitution’s struc­
tural separation of powers and the Appointments Clause,
U. S. Const., Art. II, §2, cl. 2—may still remain in the case.
As those matters have not yet been passed upon by the
Court of Appeals, this case is remanded.
I

A

Amtrak is a corporation established and authorized by a
detailed federal statute enacted by Congress for no less a
purpose than to preserve passenger services and routes on
our Nation’s railroads. See Lebron v. National Railroad
Passenger Corporation, 513 U. S. 374, 383–384 (1995);
National Railroad Passenger Corporation v. Atchison, T. &
S. F. R. Co., 470 U. S. 451, 453–457 (1985); see also Rail
Passenger Service Act of 1970, 84 Stat. 1328. Congress
recognized that Amtrak, of necessity, must rely for most of
its operations on track systems owned by the freight rail­
roads. So, as a condition of relief from their common-
carrier duties, Congress required freight railroads to allow
Amtrak to use their tracks and facilities at rates agreed to
by the parties—or in the event of disagreement to be set
by the Interstate Commerce Commission (ICC). See 45
U. S. C. §§561, 562 (1970 ed.). The Surface Transporta­
 Cite as: 575 U. S. ____ (2015) 3

Opinion of the Court

tion Board (STB) now occupies the dispute-resolution role
originally assigned to the ICC. See 49 U. S. C. §24308(a)
(2012 ed.). Since 1973, Amtrak has received a statutory
preference over freight transportation in using rail lines,
junctions, and crossings. See §24308(c).
The metrics and standards at issue here are the result
of a further and more recent enactment. Concerned by
poor service, unreliability, and delays resulting from
freight traffic congestion, Congress passed the Passenger
Rail Investment and Improvement Act (PRIIA) in 2008.
See 122 Stat. 4907. Section 207(a) of the PRIIA provides
for the creation of the metrics and standards:
“Within 180 days after the date of enactment of this
Act, the Federal Railroad Administration and Amtrak
shall jointly, in consultation with the Surface Trans­
portation Board, rail carriers over whose rail lines
Amtrak trains operate, States, Amtrak employees,
nonprofit employee organizations representing
Amtrak employees, and groups representing Amtrak
passengers, as appropriate, develop new or improve
existing metrics and minimum standards for measur­
ing the performance and service quality of intercity
passenger train operations, including cost recovery,
on-time performance and minutes of delay, ridership,
on-board services, stations, facilities, equipment, and
other services.” Id., at 4916.
Section 207(d) of the PRIIA further provides:
“If the development of the metrics and standards is
not completed within the 180-day period required by
subsection (a), any party involved in the development
of those standards may petition the Surface Transpor­
tation Board to appoint an arbitrator to assist the
parties in resolving their disputes through binding
arbitration.” Id., at 4917.
4 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF
AMERICAN RAILROADS

Opinion of the Court

The PRIIA specifies that the metrics and standards
created under §207(a) are to be used for a variety of pur­
poses. Section 207(b) requires the FRA to “publish a
quarterly report on the performance and service quality of
intercity passenger train operations” addressing the spe­
cific elements to be measured by the metrics and stand­
ards. Id., at 4916–4917. Section 207(c) provides that, “[t]o
the extent practicable, Amtrak and its host rail carriers
shall incorporate the metrics and standards developed
under subsection (a) into their access and service agree­
ments.” Id., at 4917. And §222(a) obliges Amtrak, within
one year after the metrics and standards are established,
to “develop and implement a plan to improve on-board
service pursuant to the metrics and standards for such
service developed under [§207(a)].” Id., at 4932.
Under §213(a) of the PRIIA, the metrics and standards
also may play a role in prompting investigations by the
STB and in subsequent enforcement actions. For instance,
“[i]f the on-time performance of any intercity passenger
train averages less than 80 percent for any 2 consecutive
calendar quarters,” the STB may initiate an investigation
“to determine whether and to what extent delays . . . are
due to causes that could reasonably be addressed . . . by
Amtrak or other intercity passenger rail operators.” Id.,
at 4925–4926. While conducting an investigation under
§213(a), the STB “has authority to review the accuracy of
the train performance data and the extent to which sched­
uling and congestion contribute to delays” and shall “ob­
tain information from all parties involved and identify
reasonable measures and make recommendations to im­
prove the service, quality, and on-time performance of the
train.” Id., at 4926. Following an investigation, the STB
may award damages if it “determines that delays or fail­
ures to achieve minimum standards . . . are attributable to
a rail carrier’s failure to provide preference to Amtrak over
freight transportation.” Ibid. The STB is further empow­
 Cite as: 575 U. S. ____ (2015) 5

Opinion of the Court

ered to “order the host rail carrier to remit” damages “to
Amtrak or to an entity for which Amtrak operates inter­
city passenger rail service.” Ibid.
B
In March 2009, Amtrak and the FRA published a notice
in the Federal Register inviting comments on a draft
version of the metrics and standards. App. 75–76. The
final version of the metrics and standards was issued
jointly by Amtrak and the FRA in May 2010. Id., at 129–
144. The metrics and standards address, among other
matters, Amtrak’s financial performance, its scores on
consumer satisfaction surveys, and the percentage of
passenger-trips to and from underserved communities.
Of most importance for this case, the metrics and stand­
ards also address Amtrak’s on-time performance and train
delays caused by host railroads. The standards associated
with the on-time performance metrics require on-time
performance by Amtrak trains at least 80% to 95% of the
time for each route, depending on the route and year. Id.,
at 133–135. With respect to “host-responsible delays”—
that is to say, delays attributed to the railroads along
which Amtrak trains travel—the metrics and standards
provide that “[d]elays must not be more than 900 minutes
per 10,000 Train-Miles.” Id., at 138. Amtrak conductors
determine responsibility for particular delays. Ibid., n. 23.
In the District Court for the District of Columbia, re­
spondent alleged injury to its members from being re­
quired to modify their rail operations, which mostly in­
volve freight traffic, to satisfy the metrics and standards.
Respondent claimed that §207 “violates the nondelegation
doctrine and the separation of powers principle by placing
legislative and rulemaking authority in the hands of a
private entity [Amtrak] that participates in the very in­
dustry it is supposed to regulate.” Id., at 176–177, Com­
plaint ¶51. Respondent also asserted that §207 violates
6 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF
AMERICAN RAILROADS

Opinion of the Court

the Fifth Amendment Due Process Clause by “[v]esting
the coercive power of the government” in Amtrak, an
“interested private part[y].” Id., at 177, ¶¶53–54. In its
prayer for relief respondent sought, among other reme­
dies, a declaration of §207’s unconstitutionality and inval­
idation of the metrics and standards. Id., at 177.
The District Court granted summary judgment to peti­
tioners on both claims. See 865 F. Supp. 2d 22 (DC 2012).
Without deciding whether Amtrak must be deemed pri­
vate or governmental, it rejected respondent’s nondelega­
tion argument on the ground that the FRA, the STB, and
the political branches exercised sufficient control over
promulgation and enforcement of the metrics and stand­
ards so that §207 is constitutional. See id., at 35.
The Court of Appeals for the District of Columbia Cir­
cuit reversed the judgment of the District Court as to the
nondelegation and separation of powers claim, reasoning
in central part that because “Amtrak is a private corpora­
tion with respect to Congress’s power to delegate . . . au­
thority,” it cannot constitutionally be granted the “regula­
tory power prescribed in §207.” 721 F. 3d 666, 677 (2013).
The Court of Appeals did not reach respondent’s due
process claim. See ibid.
II
In holding that Congress may not delegate to Amtrak
the joint authority to issue the metrics and standards—
authority it described as “regulatory power,” ibid.—the
Court of Appeals concluded Amtrak is a private entity for
purposes of determining its status when considering the
constitutionality of its actions in the instant dispute. That
court’s analysis treated as controlling Congress’ statutory
command that Amtrak “ ‘is not a department, agency, or
instrumentality of the United States Government.’ ” Id.,
at 675 (quoting 49 U. S. C. §24301(a)(3)). The Court of
Appeals also relied on Congress’ pronouncement that
 Cite as: 575 U. S. ____ (2015) 7

Opinion of the Court

Amtrak “ ‘shall be operated and managed as a for-profit
corporation.’ ” 721 F. 3d, at 675 (quoting §24301(a)(2)); see
also id., at 677 (“Though the federal government’s in­
volvement in Amtrak is considerable, Congress has both
designated it a private corporation and instructed that it
be managed so as to maximize profit. In deciding
Amtrak’s status for purposes of congressional delegations,
these declarations are dispositive”). Proceeding from this
premise, the Court of Appeals concluded it was impermis­
sible for Congress to “delegate regulatory authority to a
private entity.” Id., at 670; see also ibid. (holding Carter
v. Carter Coal Co., 298 U. S. 238 (1936), prohibits any
such delegation of authority).
That premise, however, was erroneous. Congressional
pronouncements, though instructive as to matters within
Congress’ authority to address, see, e.g., United States
ex rel. Totten v. Bombardier Corp., 380 F. 3d 488, 491–492
(CADC 2004) (Roberts, J.), are not dispositive of Amtrak’s
status as a governmental entity for purposes of separation
of powers analysis under the Constitution. And an inde­
pendent inquiry into Amtrak’s status under the Constitu­
tion reveals the Court of Appeals’ premise was flawed.
It is appropriate to begin the analysis with Amtrak’s
ownership and corporate structure. The Secretary of
Transportation holds all of Amtrak’s preferred stock and
most of its common stock. 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.
49 U. S. C. §24302(a)(1). These eight Board members,
in turn, select Amtrak’s president. §24302(a)(1)(B);
§24303(a). Amtrak’s Board members are subject to salary
limits set by Congress, §24303(b); and the Executive
Branch has concluded that all appointed Board members
are removable by the President without cause, see 27 Op.
Atty. Gen. 163 (2003).
8 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF

AMERICAN RAILROADS

Opinion of the Court

Under further statutory provisions, Amtrak’s Board
members must possess certain qualifications. Congress
has directed that the President make appointments based
on an individual’s prior experience in the transportation
industry, §24302(a)(1)(C), and has provided that not more
than five of the seven appointed Board members be from
the same political party, §24302(a)(3). In selecting
Amtrak’s Board members, moreover, the President must
consult with leaders of both parties in both Houses of
Congress in order to “provide adequate and balanced
representation of the major geographic regions of the
United States served by Amtrak.” §24302(a)(2).
In addition to controlling Amtrak’s stock and Board of
Directors the political branches exercise substantial,
statutorily mandated supervision over Amtrak’s priorities
and operations. Amtrak must submit numerous annual
reports to Congress and the President, detailing such
information as route-specific ridership and on-time per­
formance. §24315. The Freedom of Information Act ap­
plies to Amtrak in any year in which it receives a federal
subsidy, 5 U. S. C. §552, which thus far has been every
year of its existence. Pursuant to its status under the
Inspector General Act of 1978 as a “ ‘designated Federal
entity,’ ” 5 U. S. C. App. §8G(a)(2), p. 521, Amtrak must
maintain an inspector general, much like governmental
agencies such as the Federal Communications Commis­
sion and the Securities and Exchange Commission. Fur­
thermore, Congress conducts frequent oversight hearings
into Amtrak’s budget, routes, and prices. See, e.g., Hear­
ing on Reviewing Alternatives to Amtrak’s Annual Losses
in Food and Beverage Service before the Subcommittee on
Government Operations of the House Committee on Over­
sight and Government Reform, 113th Cong., 1st Sess., 5
(2013) (statement of Thomas J. Hall, chief of customer
service, Amtrak); Hearing on Amtrak’s Fiscal Year 2014
Budget: The Starting Point for Reauthorization before the
 Cite as: 575 U. S. ____ (2015) 9

Opinion of the Court

Subcommittee on Railroads, Pipelines, and Hazardous
Materials of the House Committee on Transportation and
Infrastructure, 113th Cong., 1st Sess., p. 6 (2013) (state­
ment of Joseph H. Boardman, president and chief execu­
tive officer, Amtrak).
It is significant that, rather than advancing its own
private economic interests, Amtrak is required to pursue
numerous, additional goals defined by statute. To take a
few examples: Amtrak must “provide efficient and effec­
tive intercity passenger rail mobility,” 49 U. S. C.
§24101(b); “minimize Government subsidies,” §24101(d);
provide reduced fares to the disabled and elderly,
§24307(a); and ensure mobility in times of national disas­
ter, §24101(c)(9).
In addition to directing Amtrak to serve these broad
public objectives, Congress has mandated certain aspects
of Amtrak’s day-to-day operations. Amtrak must main­
tain a route between Louisiana and Florida. §24101(c)(6).
When making improvements to the Northeast corridor,
Amtrak must apply seven considerations in a specified
order of priority. §24902(b). And when Amtrak purchases
materials worth more than $1 million, these materials
must be mined or produced in the United States, or manu­
factured substantially from components that are mined,
produced, or manufactured in the United States, unless
the Secretary of Transportation grants an exemption.
§24305(f).
Finally, Amtrak is also dependent on federal financial
support. In its first 43 years of operation, Amtrak has
received more than $41 billion in federal subsidies. In
recent years these subsidies have exceeded $1 billion
annually. See Brief for Petitioners 5, and n. 2, 46.
Given the combination of these unique features and its
significant ties to the Government, Amtrak is not an
autonomous private enterprise. Among other important
considerations, its priorities, operations, and decisions are
10 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF
AMERICAN RAILROADS
Opinion of the Court

extensively supervised and substantially funded by the
political branches. A majority of its Board is appointed by
the President and confirmed by the Senate and is under­
stood by the Executive to be removable by the President at
will. Amtrak was created by the Government, is con­
trolled by the Government, and operates for the Govern­
ment’s benefit. Thus, in its joint issuance of the metrics
and standards with the FRA, Amtrak acted as a govern­
mental entity for purposes of the Constitution’s separation
of powers provisions. And that exercise of governmental
power must be consistent with the design and require­
ments of the Constitution, including those provisions
relating to the separation of powers.
Respondent urges that Amtrak cannot be deemed a
governmental entity in this respect. Like the Court of
Appeals, it relies principally on the statutory directives
that Amtrak “shall be operated and managed as a for
profit corporation” and “is not a department, agency, or
instrumentality of the United States Government.”
§§24301(a)(2)–(3). In light of that statutory language,
respondent asserts, Amtrak cannot exercise the joint
authority entrusted to it and the FRA by §207(a).
On that point this Court’s decision in Lebron v. National
Railroad Passenger Corp., 513 U. S. 374 (1995), provides
necessary instruction. In Lebron, Amtrak prohibited an
artist from installing a politically controversial display in
New York City’s Penn Station. The artist sued Amtrak,
alleging a violation of his First Amendment rights. In
response Amtrak asserted that it was not a governmental
entity, explaining that “its charter’s disclaimer of agency
status prevent[ed] it from being considered a Government
entity.” Id., at 392. The Court rejected this contention,
holding “it is not for Congress to make the final determi­
nation of Amtrak’s status as a Government entity for
purposes of determining the constitutional rights of citi­
zens affected by its actions.” Ibid. To hold otherwise
 Cite as: 575 U. S. ____ (2015) 11

Opinion of the Court

would allow the Government “to evade the most solemn
obligations imposed in the Constitution by simply resort­
ing to the corporate form.” Id., at 397. Noting that
Amtrak “is established and organized under federal law
for the very purpose of pursuing federal governmental
objectives, under the direction and control of federal gov­
ernmental appointees,” id., at 398, and that the Govern­
ment exerts its control over Amtrak “not as a creditor but
as a policymaker,” the Court held Amtrak “is an agency or
instrumentality of the United States for the purpose of
individual rights guaranteed against the Government by
the Constitution.” Id., at 394, 399.
Lebron teaches that, for purposes of Amtrak’s status as
a federal actor or instrumentality under the Constitution,
the practical reality of federal control and supervision
prevails over Congress’ disclaimer of Amtrak’s governmen­
tal status. Lebron involved a First Amendment question,
while in this case the challenge is to Amtrak’s joint au­
thority to issue the metrics and standards. But “[t]he
structural principles secured by the separation of powers
protect the individual as well.” Bond v. United States, 564
U. S. ___, ___ (2011) (slip op., at 10). Treating Amtrak as
governmental for these purposes, moreover, is not an
unbridled grant of authority to an unaccountable actor.
The political branches created Amtrak, control its Board,
define its mission, specify many of its day-to-day opera­
tions, have imposed substantial transparency and ac­
countability mechanisms, and, for all practical purposes,
set and supervise its annual budget. Accordingly, the
Court holds that Amtrak is a governmental entity, not a
private one, for purposes of determining the constitutional
issues presented in this case.
III
Because the Court of Appeals’ decision was based on the
flawed premise that Amtrak should be treated as a private
12 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF
AMERICAN RAILROADS

Opinion of the Court

entity, that opinion is now vacated. On remand, the Court
of Appeals, after identifying the issues that are properly
preserved and before it, will then have the instruction of
the analysis set forth here. Respondent argues that the
selection of Amtrak’s president, who is appointed “not by
the President . . . but by the other eight Board Members,”
“call[s] into question Amtrak’s structure under the Ap­
pointments Clause,” Brief for Respondent 42; that
§207(d)’s arbitrator provision “is a plain violation of the
nondelegation principle” and the Appointments Clause
requiring invalidation of §207(a), id., at 26; and that Con­
gress violated the Due Process Clause by “giv[ing] a feder­
ally chartered, nominally private, for-profit corporation
regulatory authority over its own industry,” id., at 43.
Petitioners, in turn, contend that “the metrics and stand­
ards do not reflect the exercise of ‘rulemaking’ authority or
permit Amtrak to ‘regulate other private entities,’ ” and
thus do not raise nondelegation concerns. Reply Brief 5
(internal citation omitted). Because “[o]urs is a court of
final review and not first view,” Zivotofsky v. Clinton, 566
U. S. ___, ___ (2012) (slip op., at 12) (internal quotation
marks omitted), those issues—to the extent they are
properly before the Court of Appeals—should be addressed
in the first instance on remand.
The judgment of the Court of Appeals for the District of
Columbia Circuit is vacated, and the case is remanded for
further proceedings consistent with this opinion.

It is so ordered.
 Cite as: 575 U. S. ____ (2015) 1

ALITO, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

No. 13–1080
_________________

DEPARTMENT OF TRANSPORTATION, ET AL.,

PETITIONERS v. ASSOCIATION OF

AMERICAN RAILROADS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

[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 Gov-
ernment, is controlled by the Government, and operates
for the Government’s benefit.” Ante, at 10. The Govern-
ment 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.
I
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, Govern-
2 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF
AMERICAN RAILROADS

ALITO, J., concurring

ment 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] corpora-
tions 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.
II
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] Repre-
sentative . . . 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).
——————
* 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.
 Cite as: 575 U. S. ____ (2015) 3

ALITO, J., concurring

Both the Oath and Commission Clauses confirm an
important point: Those who exercise the power of Gov-
ernment 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 Con-
stitution, 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 Gov-
ernment, ante, at 11, those who run it need to satisfy basic
constitutional requirements.
III
I turn next to the Passenger Rail Investment and Im-
provement 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 opera-
tions.” Id., at 4916. In addition, §207(c) commands that
“[t]o the extent practicable, Amtrak and its host rail carri-
ers 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 [Sur-
face Transportation Board (STB)] and in subsequent
enforcement actions.” Ante, at 4.
This scheme is obviously regulatory. Section 207 pro-
vides that Amtrak and the FRA “shall jointly” create new
standards, cf. e.g., 12 U. S. C. §1831m(g)(4)(B) (“The ap-
4 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF
AMERICAN RAILROADS

ALITO, J., concurring

propriate 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 recon-
cile, 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 regu-
lation, statutory mandate, and penalty is not direct (for, as
the Government explains, there is a pre-existing require-
ment 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
 Cite as: 575 U. S. ____ (2015) 5

ALITO, J., concurring

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,” re-
spondent argues that because the arbitrator can be a
private person, this provision by itself violates the pri-
vate 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 mech-
anism cannot be challenged because the parties com-
promised. 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 circum-
stances. 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 respond-
ents 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
6 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF

AMERICAN RAILROADS

ALITO, J., concurring

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 author-
ity to a private entity.” 721 F. 3d, at 670. Indeed, Con-
gress, 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 check-
points. 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 lawmak-
ing 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 Mis-
 Cite as: 575 U. S. ____ (2015) 7

ALITO, J., concurring

tretta, 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 Envi-
ronmental Services (TOC), Inc., 528 U. S. 167, 197 (2000)
(KENNEDY, J., concurring). A citizen suit to enforce exist-
ing law, however, is nothing compared to delegated power
to create new law. By any measure, handing off regu-
latory 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
8 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF

AMERICAN RAILROADS

ALITO, J., concurring

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 Consti-
tution is violated. See 721 F. 3d, at 674 (“[T]hat the recip-
ients 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 stat-
ute is susceptible to an alternative reading and that such
an alternative reading would itself be constitutional.
Here, the Government’s argument that the word “arbi-
trator” does not mean “private arbitrator” is in some ten-
sion 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 resolu-
tion.” 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
 Cite as: 575 U. S. ____ (2015) 9

ALITO, J., concurring

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 “prac-
ticable.” As to that “binding” decision, who is the supervi-
sor? Inferior officers can do many things, but nothing
final should appear in the Federal Register unless a Pres-
idential 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.
IV
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
10 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF
AMERICAN RAILROADS

ALITO, J., concurring

president has not been appointed by the President and
confirmed by the Senate.
As explained above, accountability demands that princi-
pal 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 princi-
ple 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. Unsurpris-
ingly 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 Enter-
prise Fund, supra, at 512–513. But those who head agen-
cies 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 multimem-
ber body heading an agency must also be a principal of-
ficer. 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 uni-
lateral 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 foot-
note. 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.
 Cite as: 575 U. S. ____ (2015) 11

ALITO, J., concurring

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 author-
ity to appoint inferior officers. The Appointments Clause
provides an exception from the ordinary rule of Presiden-
tial 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 Depart-
ments.” 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 Trans-
portation also has authority to exempt Amtrak from cer-
tain 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 arbitra-
tor). All of these are difficult questions.
* * *
In sum, while I entirely agree with the Court that
12 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF
AMERICAN RAILROADS

ALITO, J., concurring

Amtrak must be regarded as a federal actor for constitu-
tional 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 Con-
stitution cannot be disregarded.
 Cite as: 575 U. S. ____ (2015) 1

THOMAS, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
_________________

No. 13–1080
_________________

DEPARTMENT OF TRANSPORTATION, ET AL.,

PETITIONERS v. ASSOCIATION OF

AMERICAN 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 an-
swer—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 chal-
lenge to the metrics and standards. I cannot join the
majority’s analysis, however, because it fails to fully cor-
rect the errors that require us to vacate the Court of Ap-
peals’ decision. I write separately to describe the frame-
work that I believe should guide our resolution of
delegation challenges and to highlight serious constitu-
tional defects in the Passenger Rail Investment and Im-
provement Act of 2008 (PRIIA) that are properly presented
for the lower courts’ review on remand.
2 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF
AMERICAN RAILROADS

THOMAS, J., concurring in judgment

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 Account-
ing Oversight Bd., 561 U. S. 477, 496–497 (2010) (execu-
tive 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 unre-
 Cite as: 575 U. S. ____ (2015) 3

THOMAS, J., concurring in judgment

lated grounds in Humphrey’s Executor v. United States,
295 U. S. 602 (1935).
When the Court speaks of Congress improperly delegat-
ing power, what it means is Congress’ authorizing an
entity to exercise power in a manner inconsistent with the
Constitution. For example, Congress improperly “dele-
gates” 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 guid-
ance 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 juris-
prudence 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
4 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF

AMERICAN RAILROADS

THOMAS, J., concurring in judgment

follow that there is no overlap between the three catego-
ries of governmental power. Certain functions may be
performed by two or more branches without either exceed-
ing its enumerated powers under the Constitution. Reso-
lution 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 execu-
tive 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 Con-
gress 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 discre-
tion inherent in executive power does not comprehend the
discretion to formulate generally applicable rules of pri-
vate conduct.
A
The idea that the Executive may not formulate generally
applicable rules of private conduct emerged even before
 Cite as: 575 U. S. ____ (2015) 5

THOMAS, J., concurring in judgment

the theory of the separation of powers on which our Con-
stitution 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 “pre-
supposes 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 ac-
cording 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 sepa-
rate. 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 exer-
cised through statutes. Ibid.; see also M. Hale, The Pre-
rogatives 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
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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 Proc-
lamations 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 sub-
version 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, delega-
tions 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 con-
duct. King James I made a famous attempt, see Perez,
post, at 14 (opinion of THOMAS, J.), prompting the influen-
tial 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
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THOMAS, J., concurring in judgment

offence before, without Parliament.” Case of Proclama-
tions, 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 con-
duct 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 Govern-
ment §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] trans-
fer 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
——————
1 Chapter 39 of the 1215 Magna Carta declared that “[n]o free man

shall be taken, imprisoned, disseised, outlawed, banished, or in any
way destroyed, nor will We proceed against or prosecute him, except by
the lawful judgment of his peers and by the law of the land.” A. How-
ard, Magna Carta: Text and Commentary 43 (1964).
2 Locke and his contemporaries also believed that requiring laws to be

made in Parliament secured the common interest. W. Gwyn, The
Meaning of the Separation of Powers 75 (1965). Parliament would
assemble to do the business of legislation, but then its members would
disperse to live as private citizens under the laws they had created,
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William Blackstone, in his Commentaries, likewise
maintained that the English Constitution required that no
subject be deprived of core private rights except in accord-
ance 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 to-
gether, 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 “dis-
grace[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 re-
flect 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.

——————

providing them an incentive to legislate in the common interest.

During Parliament’s absence, the King might meet certain emergencies

through the exercise of prerogative power, but in order to make new,

permanent laws, he would be required to call Parliament into session.

Locke §§143–144, at 72–73. If the King were not dependent on Parlia-
ment to legislate, then this beneficial cycle of periodic lawmaking

interspersed with representatives’ living as private citizens would be

broken.

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THOMAS, J., concurring in judgment

See, e.g., Mistretta v. United States, 488 U. S. 361, 380–
381 (1989). Most famously, in The Federalist 47, Madison
wrote that “[n]o political truth is certainly of greater in-
trinsic 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, execu-
tive, 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 consti-
tutional 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. Par-
liament’s violations of the law of the land had been a
significant complaint of the American Revolution, Chap-
man & 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 legisla-
tive supremacy model at the Pennsylvania ratification
convention:
“Sir William Blackstone will tell you, that in Britain
. . . the Parliament may alter the form of the govern-
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ment; and that its power is absolute, without control.
The idea of a constitution, limiting and superintend-
ing 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 Black-
stone’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 separa-
tion 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 Constitu-
tion in the Supreme Court: The First One Hundred Years,
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THOMAS, J., concurring in judgment

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 consolida-
tion 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 separa-
tion 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 as-
certain 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. Citi-
zens 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 in-
——————
3 I do not mean to suggest here that the Framers believed an Act of

the Legislature was sufficient to deprive a person of private rights; only
that it was necessary. See generally Chapman & McConnell, Due
Process as Separation of Powers, 121 Yale L. J. 1672, 1715, 1721–1726
(2012) (discussing historical evidence that the Framers believed the
Due Process Clause limited Congress’ power to provide by law for the
deprivation of private rights without judicial process).
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creasingly clear to me that the test we have applied to
distinguish legislative from executive power largely abdi-
cates 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 “intelligi-
ble principle” test has become, it is evident that it does not
adequately reinforce the Constitution’s allocation of legis-
lative power. I would return to the original understanding
of the federal legislative power and require that the Fed-
eral Government create generally applicable rules of
private conduct only through the constitutionally pre-
scribed 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 provi-
sion of the Tariff Act of 1922. Ibid. That provision author-
ized 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 (quoting 19 U. S. C. §154
(1925 ed.)). The importer of the barium dioxide challenged
the provision as an unconstitutional delegation of legisla-
tive 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, set-
ting forth the now-famous formulation: “If Congress shall
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THOMAS, J., concurring in judgment

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 forbid-
den 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, 683–689 (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 proclama-
tion.” Id., at 683.
The practice of conditional legislation dates back at
least to the Third Congress in 1794. Id., at 683–689 (col-
lecting 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 legisla-
tive 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 condi-
tionally, 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 Presi-
dent 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 determina-
tion 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 condi-
14 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF
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THOMAS, J., concurring in judgment

tioned: 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 Execu-
tive officers exercise such power when, upon investigation,
they ascertain whether a particular applicant for a pen-
sion 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, 1
Stat. 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 Delega-
tion Doctrine: Could The Court Give It Substance? 83
Mich. L. Rev. 1223, 1263–1264 (1985).4 Such delegations
——————
4 The statute at issue in Field authorized the President to reimpose
statutory duties on exports from a particular country if he found that
the country had imposed “reciprocally unequal and unreasonable”
duties on U. S. exports. 143 U. S., at 692. At least insofar as the terms
“unequal” and “unreasonable” did not have settled common-law defini-
tions that could be applied mechanically to the facts, they could be said
to call for the President to exercise policy judgment about which duties
qualified. See id., at 699 (Lamar, J., dissenting but concurring in
judgment) (The statute “does not, as was provided in the statutes of
1809 and 1810, entrust the President with the ascertainment of a fact
therein defined upon which the law is to go into operation. It goes
farther than that, and deputes to the President the power to suspend
another section in the same act whenever ‘he may deem’ the action of
any foreign nation . . . to be ‘reciprocally unequal and unreasona-
 Cite as: 575 U. S. ____ (2015) 15

THOMAS, J., concurring in judgment

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 exam-
ple—or implicitly—by drawing distinctions on an ad hoc
basis. In either event, he does so based on a policy judg-
ment that is not reviewable by the courts, at least to the
extent that the judgment falls within the range of discre-
tion 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 argua-
bly 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
——————
ble. . . ’ ”). Similarly, the statute at issue in J. W. Hampton called on
the President, with the aid of a commission, to determine the “ ‘costs of
production’ ” for various goods—a calculation that could entail an
exercise of policy judgment about the appropriate wage and profit rates
in the relevant industries. 276 U. S., at 401.
5 The definition of “law” in England at the time of the ratification did

not necessarily include rules—even rules of private conduct—dealing
with external relations. For example, while “every Englishman [could]
claim a right to abide in his own country so long as he pleases; and not
to be driven from it unless by the sentence of the law,” the King “by his
royal prerogative, [could] issue out his writ ne exeat regnum, and
prohibit any of his subjects from going into foreign parts without
licence.” 1 Commentaries 133. It is thus likely the Constitution grants
the President a greater measure of discretion in the realm of foreign
relations, and the conditional tariff Acts must be understood accord-
ingly. See Clinton v. City of New York, 524 U. S. 417, 445 (1998) (distin-
guishing Field on the ground that the statute at issue in Field regulated
foreign trade); see also United States v. Curtiss-Wright Export Corp.,
299 U. S. 304, 324 (1936) (“Practically every volume of the United
States Statutes contains one or more acts or joint resolutions of Con-
gress authorizing action by the President in respect of subjects affecting
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THOMAS, J., concurring in judgment

Moreover, the statute was never subjected to constitutional
scrutiny. And when a statute of its kind—that is, a
tariff 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 appli-
cable 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 legisla-
tion, 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
——————
foreign relations, which either leave the exercise of the power to his
unrestricted judgment, or provide a standard far more general than
that which has always been considered requisite with regard to domes-
tic affairs”). This Court has at least once expressly relied on this
rationale to sanction a delegation of power to make rules governing
private conduct in the area of foreign trade. See Buttfield v. Strana-
han, 192 U. S. 470, 496 (1904).
6 Contemporary perceptions of the statute were less sanguine. One

editorial deemed it “the most dangerous advance in bureaucratic
government ever attempted in America.” D. Schoenbrod, Power With-
out Responsibility 36 (1993) (quoting Letter from J. Cotton (Feb. 7,
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THOMAS, J., concurring in judgment

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 gen-
erally applicable rules governing private conduct. To the
extent that our modern jurisprudence treats them as
sanctioning the “delegation” of such power, it misunder-
stands 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 con-
duct,” and they were found valid “as subordinate rules . . .
[when] within the framework of the policy which the legis-
lature ha[d] sufficiently defined.” Id., at 428–429. To the
extent that these cases endorsed authorizing the Execu-
tive 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
——————

1929), in With Our Readers, 13 Constitutional Review 98, 101 (1929)).

President-elect Hoover stirred the public with promises of a repeal:

“There is only one commission to which delegation of [the] authority [to

set tariffs] can be made. That is the great commission of [the people’s]

own choosing, the Congress of the United States and the President.”

Public Papers of the Presidents, Herbert Hoover, 1929, p. 565 (1974);

see also Schoenbrod, supra, at 36.

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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 rule-
making 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 legisla-
ture, seems to be blended with that for which the legisla-
ture must expressly and directly provide.” Id., at 46.
This important passage reflects two premises that Chief
Justice Marshall took for granted, but which are disre-
garded 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, re-
flected in the contrast Chief Justice Marshall draws be-
tween 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 substan-
tive private rights and duties and which did not. We
continue to wrestle with this same distinction today in our
decisions distinguishing between substantive and proce-
dural rules both in diversity cases and under the Rules
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THOMAS, J., concurring in judgment

Enabling Act. See, e.g., Shady Grove Orthopedic Associ-
ates, P. A. v. Allstate Ins. Co., 559 U. S. 393, 406–407
(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 sub-
stantive right,’ §2072(b)”).7
C
Today, the Court has abandoned all pretense of enforc-
ing a qualitative distinction between legislative and exec-
utive power. To the extent that the “intelligible principle”
test was ever an adequate means of enforcing that distinc-
tion, it has been decoupled from the historical understand-
ing 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 pow-
ers would be substantially honored so long as the en-
croachment 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
——————
7 Another early precedent on which the errant “subordinate rulemak-
ing” line of cases relies involves rules governing mining claims on
public land. Jackson v. Roby, 109 U. S. 440, 441 (1883); see also United
States v. Grimaud, 220 U. S. 506 (1911) (sustaining an Act authorizing
the Secretary of Agriculture to make rules and regulations governing
the use and occupancy of public forest reservations). Although perhaps
questionable on its own terms, Jackson is distinguishable because it did
not involve the Government’s reaching out to regulate private conduct,
but instead involved the Government’s setting rules by which individ-
uals might enter onto public land to avail themselves of resources
belonging to the Government.
20 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF
AMERICAN RAILROADS

THOMAS, J., concurring in judgment

cooperation between two political branches of the Gov-
ernment, 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 increas-
ingly complex society, replete with ever changing and
more technical problems, Congress simply cannot do its
job absent an ability to delegate power under broad gen-
eral 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 “unneces-
sary.” See, e.g., American Power & Light Co. v. SEC, 329
U. S. 90, 104–105 (1946). It has permitted the Executive
to make trade-offs between competing policy goals. See,
——————
8 Much of the upheaval in our delegation jurisprudence occurred dur-

ing the Progressive Era, a time marked by an increased faith in the
technical expertise of agencies and a commensurate cynicism about
principles of popular sovereignty. See Perez v. Mortgage Bankers Assn.,
post, at 19–20, n. 6 (THOMAS, J., concurring in judgment).
 Cite as: 575 U. S. ____ (2015) 21

THOMAS, J., concurring in judgment

e.g., Yakus v. United States, 321 U. S. 414, 420, 423–426
(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, 686–687 (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 com-
promise was difficult, if not impossible, to hammer out in
the legislative forge”). It has even permitted the Execu-
tive to decide which policy goals it wants to pursue. En-
tergy Corp. v. Riverkeeper, Inc., 556 U. S. 208, 218–223
(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., concur-
ring 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 “intel-
ligible 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 distin-
guish between legislative and executive power, but that
does not mean we may look the other way when the Gov-
ernment asks us to apply a legally binding rule that is not
22 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF
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THOMAS, J., concurring in judgment

enacted by Congress pursuant to Article I.
We should return to the original meaning of the Consti-
tution: 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 ad-
vantage 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 constitu-
tional provisions that govern respondent’s challenge to
§207 of the PRIIA.
A
Until the case arrived in this Court, the parties pro-
 Cite as: 575 U. S. ____ (2015) 23

THOMAS, J., concurring in judgment

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 pri-
vate 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 cate-
gorically preclude it from exercising the legislative, execu-
tive, 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 neces-
sarily 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,
——————
9 See Brief for Appellees in No. 12–5204 (DC), pp. 23–29 (defending

§207 under cases upholding statutes “assign[ing] an important role to a
private party”); id., at 29 (“Amtrak . . . is not a private entity compar-
able to the [private parties in a relevant precedent]. Although the
government does not control Amtrak’s day-to-day operations, the
government exercises significant structural control”).
24 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF
AMERICAN RAILROADS
THOMAS, J., concurring in judgment

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 con-
stitutional significance for “delegation” purposes.
B
The first step in the Court of Appeals’ analysis on re-
mand 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 rail-
roads’ common-carrier obligations under 49 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 obliga-
tions 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
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THOMAS, J., concurring in judgment

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 de-
fined 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 con-
trol 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 di-
rectly contrary to our more recent holding that a discre-
tionary “veto” necessarily involves an exercise of legisla-
tive power. See INS v. Chadha, 462 U. S., at 952–953; see
also id., at 987 (White, J., dissenting) (noting that the
26 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF
AMERICAN RAILROADS
THOMAS, J., concurring in judgment

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 recog-
nize, 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 deter-
mination, 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 execu-
tive 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. Con-
gress 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 ade-
quately subject to Presidential control. See Myers, 272
U. S., at 117. Our precedents treat appointment and
removal powers as the primary devices of executive con-
trol, Free Enterprise Fund, 561 U. S., at 492, and that
should be the starting point of the Court of Appeals’ anal-
ysis. As JUSTICE ALITO’s concurrence demonstrates,
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THOMAS, J., concurring in judgment

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 infrastruc-
ture with Amtrak. This arrangement raises serious con-
stitutional 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 the
cost is to our Constitution and the individual liberty it
protects.