With one significant exception (which I’ll discuss in a moment), this week’s Supreme Court oral arguments concern important but mostly mundane matters. The high court will hear arguments about taxes twice, appellate subject matter jurisdiction once, and equitable tolling of statutes of limitations under the Federal Tort Claims Act twice.

The one case having truly profound implications for the Constitution’s separation of powers will be heard late this morning, in Department of Transportation v. American Association of Railroads. The issue, in a nutshell, is this: Does the Constitution permit Congress to delegate regulatory authority to a private actor?

In 2008, Congress passed the Passenger Rail Investment and Improvement Act, which required the Federal Railroad Administration and Amtrak, an aspirationally for-profit corporation with a federal charter, to jointly develop performance standards for freight railroads. Under federal law, you see, Amtrak gets preferential treatment over freight transport in the use of railways. The PRIIA thus allows Amtrak and the FRA to gang up on freight railways by creating standards for determining whether the freight railroads have given Amtrak appropriate preferential treatment. If FRA and Amtrak can’t agree on criteria within 180 days, the FRA’s Surface Transportation Board appoints an arbitrator who will “assist the parties in resolving their disputes through binding arbitration.” (As you can see, “assisting” the parties in making regulations through “binding arbitration” is a euphemism for “writing the regulations” at least some of the time.)

The D.C. Circuit, in a unanimous opinion written by Judge Janice Rogers Brown, concluded that the statute was unconstitutional because it delegated regulatory power to a private entity, namely, Amtrak. In the Supreme Court, the Department of Transportation is arguing basically two things: (1) Congress has the power to allow private parties to develop regulations (relying on the absence of Supreme Court case law striking down legislation under Carter v. Carter Coal Co. (1936)); and (2) Amtrak is not a “private” entity for nondelegation purposes so Carter cannot apply. The respondents argue: (1) Carter bars this as an unconstitutional delegation of regulatory power to a private party; (2) Amtrak is not a federal agency for the purposes of nondelegation analysis and therefore Carter applies; and (3) the arbitration provision violates the Due Process Clause.

Will the Supreme Court find an unconstitutional delegation and reaffirm Carter? Or will it reverse Carter and stick another knife into the nondelegation principle? Or will it say Amtrak is not a private entity?

While we wait to find out, read the briefs filed in the case on SCOTUSblog’s case page here.