So begins the concurring opinion by Clarence Thomas in the just-issued Department of Transportation v. Association of American Railroads.
Here's Sasha Volokh with some detail on the case, in which he'd filed an amicus brief:
I argued in my brief that, regardless whether Amtrak is public or private, the delegation is fine under conventional non-delegation doctrine: Currin v. Wallace (1939) validated a delegation to a private actor, and so the usual “intelligible principle” test applies. Under that test, the delegation is valid because Amtrak’s power is sufficiently constrained by the requirement that it act to maximize profits....
[The majority Court decided] the case based on the boringest, most Amtrak-specific grounds... Justice Alito’s concurrence is interesting and deserves a separate post. Justice Thomas’s concurrence in the judgment provides the complete rethinking of the non-delegation doctrine on originalist grounds....
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Thomas is pointing that federal courts have simply ignored the Constitutional implications of the entire Progressive scheme of law made by bureaucracy, including private corporate bureaucracy. Consider Roberts' Obamacare opinion last term: if the individual and business insurance mandates are a tax, then the biggest amount of the effective tax (i.e., the insurance premiums) is being collected by the private insurers. Tax farming was literally a medieval practice, subject to abuses that led to its abolition centuries before 1776. Yet Roberts' opinion revives (and implicitly endorses) the practice
There's an intriguing line in the Alito concurrence, too: "[A]voidance works only if the statute is susceptible to an alternative reading and that such an alternative reading would itself be constitutional." I expect to read that quoted later this term in at least one opinion in King.
You need to specify where tax farming was abolished "centuries before 1776."
In many places it continued well into the 20th century, and for all I know, may still be practiced in some corners of the world today.
Oh, how very interesting! Thank you so much for posting this - I would have missed it otherwise.
I thought this WAS an Obamacare thread at the first sentence or 2
Love his closing:
"...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."
robother said... Tax farming was literally a medieval practice I'll take the flip side of Hagar's comment and point out that organized tax farming could be called an ancient tradition, practiced as it was by the Romans and likely by the Egyptians even earlier.
Leave it to Justice Thomas to ask "well, just what the hell does the Constitution say about this whole scheme, anyway?" Agree with him or not you've got to admire his POV.
Noticed that Barron's AP Euro history test prep book brackets the KKK and Justice Thomas together to illustrate politics to the right of the Tea Party. We are all fascists now, to some people, and I guess 'originalism' may be fascist, too.
http://dailycaller.com/2015/03/08/barrons-ap-test-prep-guide-clarence-thomas-is-a-fascist-in-league-with-kkk-photos/
Amtrak is constrained by its profit generation? That's a good one.
Is Amtrak a "post road", or is it cough cough regulating interstate commerce?
Actually, now that I think on it, tax farming is not that apt an analogy: at least under tax farming, the sovereign would set the tax rate and simply sell the right (and risk) of collection to a private entity. In the case of Obamacare, the mandated insurance premium rates are set by the private collector; only the penalty for noncompliance is set by the (presumably) democratically accountable sovereign. Amazing that a Republic that started with a revolt against "taxation without representation" is now subject to taxation by private business entities. And only Clarence Thomas would even notice.
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