Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Monday, March 9, 2015

Separation of Powers and the Non-delegation Doctrine

Department of Transportation v. Association of American Railroads, No. 13-1080 (March 9, 2015) is one of those administration law cases that to the casual observer at first glance looks complicated, technical and, to be honest, boring.  The case exists because in 2008, Congress granted Amtrak and the Federal Railroad Administration joint authority to issue "metrics and standards" relating to Amtrak's scheduling and performance.  The Association ("AAR") challenged this authority in this case because the metrics and standards imposed adversely affects their members' freight business interests.  Normally, this is the type case I would not even read.  I'm sure glad I did.

The AAR argued Congress violated separation of powers rules by delegated this rule-making authority to Amtrak -- a private entity.  The Court of Appeals held for AAR on both issues -- that Amtrak was a private entity and that the Congress's delegation of authority violated separation of powers.  The Supreme Court reversed that first finding today and held unanimously that for separation of powers purposes, Amtrak is a government entity[1].  The Court remanded the case to the Court of Appeals for further consideration in light of this holding. 

Justice Kennedy wrote the opinion joined by seven other Justices, including Justice Alito, who concurred.  Justice Kennedy acknowledges that further litigation will determine whether Amtrak's role in setting rail regulations passes constitutional muster.  Justice Thomas concurred in the judgment only.  Justices Alito wrote about the implications for the Amtrak legislative and regulatory scheme now that Amtrak is held to be a governmental entity for these purposes.  These issues include the oath or affirmation requirement in Art. IV, cl. 3; the commission requirement in Art. II, Sec. 3, cl. 6; the scope of the relatively obscure non-delegation doctrine and whether Amtrak's legislative and regulatory scheme violates separation of powers. 

Justice Thomas goes further -- his concurring opinion is a lengthy and powerful commentary on the  separation of powers doctrine's history and purpose.  He concludes his opinion this way:

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 infrastructure with Amtrak. This arrangement raises serious constitutional 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.

This case is going back to the Court of Appeals and may be satisfactorily resolved there or below, but the Court's decision and opinions today set the stage for a possible major showdown on separation of powers and the Court's non-delegation doctrine. 

For Background:

Edit to add: 

Craig Estlinbaum

[1] The Court previously held Amtrak to be a "Government actor" for First Amendment purposes in Lebron v. National R. R. Passenger Corp., 513 U.S. 374 (1995).

March 9, 2015 in Administrative Law, Constitutional Law, Interesting Cases, Recent Developments, Supreme Court | Permalink | Comments (1)

Friday, June 27, 2014

No Limits on Soda Size in NYC

New York's highest state court, the Court of Appeals, rejected the city's ban on sodas larger than 16 ounces yesterday.  The case, New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health and Mental Hygiene, No. 134 (N.Y., June 26, 2014) begins:

We hold that the New York City Board of Health, in adopting the "Sugary Drinks Portion Cap Rule", exceeded the scope of its regulatory authority.

The New York Times' Michael M. Grynbaum has a story here.

Craig Estlinbaum

June 27, 2014 in Administrative Law, Food and Drink, Interesting Cases, New York Law | Permalink | Comments (0)

Tuesday, September 11, 2012

Using employer’s computer to store sexually explicit results in recommendation the employee be terminated


Human Resources Admin. v. Vila, OATH Index No. 1578/08
OATH Administrative Law Judge Julio Rodriguez recommended termination for a paralegal aide who used the agency computer to store thousands of unauthorized images and video clips, many of which were sexually explicit, as well as other programs and files.
The evidence also showed that the individual was insubordinate and committed multiple time and leave violations.


Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

September 11, 2012 in Administrative Law, Public Sector Employment Law | Permalink | Comments (1)

Thursday, June 28, 2012

DC Circuit Upholds EPA Gashouse Regulations

In what on writer called a "stinging rebuke to industry and [the challenging] states," a three-judge DC Circuit court panel Tuesday upheld the Environmental Protection Agency's ("EPA's") greenhouse gas regulations.

The case, Coalition for Responsible Reg v. EPA, No. 09-1322 (D.C. Cir. June 26, 2012), following the United States Supreme Court's 5-4 decision in Massachusetts v. EPA, 549 U.S. 497 (2007) which compelled the EPA to regulate air pollutants under the Clean Air Act's ("CAA's") authority.  The EPA in turn issued an Endangerment Finding, determining that greenhouse gases may "reasonably be anticipated to endanger public health or welfare" (citing the CAA) and the Tailpipe Rule, setting emission standards for cars and some trucks. The EPA also ordered certain stationary greenhouse gas producers to obtain construction and operating permits.  Finally, the EPA issued a Timing and Tailoring Rule providing that only the largest stationary producers would be initially subject to the permit requirements.

The Petitioners which included some states and industry groups challenged the rules on ground that the EPA had improperly interpreted the CAA.  Yesterday, the appeals court panel consisting of Judges Sentelle (Reagan appointment), Rogers (Bush II) and Tatel (Clinton), rejected those challenges, allowing the EPA rules to stand.

The next meaningful step for the challengers in this case is the United States Supreme Court, as en banc review of this unanimous decision seems very unlikely.  The Massachusetts case was decided five-to-four, and four justices are required to grant certiorari. Inasmuch as the court's composition has changed with two justices from the Massachusetts majority (Stevens, the opinion's author, and Souter) having left the court, I would say there is some chance the Massachusetts dissenters will vote to grant certiorari in the case.

Craig Estlinbaum

June 28, 2012 in Administrative Law, Constitutional Law, Federal Law, Interesting Cases, Recent Developments | Permalink | Comments (0)

Monday, August 8, 2011

Guidelines followed in determining if an individual was provided administrative due process in a quasi-judicial hearing


Matter of Hildreth v New York State Dept. of Motor Vehicles Appeals Bd., 2011 NY Slip Op 03066, Appellate Division, Second Department
In considering this appeal from an adverse administrative decision that resulted in the  revocation of Wilbur Hildreth’s driver's license pursuant to Vehicle and Traffic Law §1194 for one year as the result of his refusal to submit to a chemical blood-alcohol test, the Appellate Division addressed a number of issues concerning administrative adjudication procedures.
The court said that:
1. In order to annul an administrative determination made after a hearing, a court must conclude that the record lacks substantial evidence to support the determination;
2. Substantial evidence is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact;
3. The courts may not weigh the evidence or reject the choice made by an administrative agency where the evidence is conflicting and room for choice exists; and
4. Unlike the constitutional right to confrontation in criminal matters, parties in administrative proceedings have only a limited right to cross-examine adverse witnesses as a matter of due process.
In response to Hildreth’s argument that the administrative proceeding should have been dismissed” for failure to hold a hearing within a reasonable time as required under the State Administrative Procedure Act §301 or within six months from the date the DMV received notice of his chemical test refusal as required under 15 NYCRR 127.2(b)(2),” the Appellate Division said that the time limitations imposed on administrative agencies by their own regulations are not mandatory.
Unless the individual can show the delay caused “substantial prejudice,” he or she is not  entitled to relief for an agency's noncompliance with its own “time limits” controlling the proceeding.
The decision is posted on the Internet at:


Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

August 8, 2011 in Administrative Law | Permalink | Comments (0)

Saturday, January 31, 2009

Conflict of interest for agency attorneys?

Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2008, All rights reserved

An article on, "State of California Appears Favored in Attorney Conflict Case", describes a case before the Supreme Court of California arguing that an attorney who advises an agency decision-maker on unrelated matters should not be allowed to represent the agency in enforcement actions before that decision-maker. The author says that the Court's questions at oral argument suggest that it is leaning towards the State's position that such attorney-agency relationships are not a problem as a practical matter and that requiring separation between advising and enforcement attorneys would cause bad problems for small agencies.

The closest analogy I can think of would be a judge's law clerk arguing cases before her judge. Would this imply bias sufficient to violate due process as a matter of law? It could be an interesting discussion.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein 

January 31, 2009 in Administrative Law | Permalink | Comments (0) | TrackBack (0)