Justice Thomas’s careful opinion in Department of Transportation v. Association of American Railroads is a must-read for anyone interested in administrative law and the separation of powers.
I highlight here his discussion of why the modern-day “intelligible principle” test is a judicial abdication.
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 enacted by Congress pursuant to Article I.
In short, promoting a convenient government is not enough to justify this breakdown of the separation of the powers.
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.
Read the entire opinion. We are very fortunate to have such a thoughtful jurist on the Court, whether you agree with him or not.
In short, the Court “abrogated” its duty:
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.
In closing, CT makes a not-too-veiled reference to fascist train schedules. Alas, not even Amtrak runs on time.
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.