Association of American Railroads v. Department of Transportation, et al.

Section 207 of the Passenger Rail Investment and Improvement Act (PRIIA) gives Amtrak, a for-profit government corporation, joint rulemaking authority with the Federal Railroad Administration (FRA) over the private freight railroads that compete with Amtrak—and empowers an arbitrator with the ultimate authority to promulgate the regulations if Amtrak and FRA cannot agree. Following a remand from this Court for resolution of the “substantial” constitutional questions presented, see Dep’t of Transp. v. Ass’n Am. R.R.s, 135 S. Ct. 1225 (2015), a panel of the D.C. Circuit struck down Section 207 in its entirety as violating due process because it “authoriz[es] an economically selfinterested actor to regulate its competitors.” A different panel of the D.C. Circuit later reinstated the grant of rulemaking power to Amtrak and FRA by severing the arbitration provision, holding that severance cured the constitutional infirmity. The questions presented are:

1. Whether PRIIA § 207 violates due process and the separation of powers by permitting regulatory authority to be exercised by a for-profit government corporation that participates in the very industry it is empowered to regulate.

2. Whether PRIIA § 207’s grant of rulemaking power to Amtrak and FRA can be sustained by severing the arbitration provision.