WASHINGTON, DC—The American Council of Trustees and Alumni today filed an amicus brief calling on the Supreme Court to reaffirm the private non-delegation doctrine. The brief was filed in the case of Department of Transportation (DOT) vs. the Association of American Railroads (AAR).
The AAR filed suit against the DOT, arguing that the Passenger Rail Investment and Improvement Act of 2008 is unconstitutional in giving Amtrak—a private entity—federal lawmaking authority. The AAR also contends that the statute violates the Due Process Clause of the Fifth Amendment in granting the authority to Amtrak to regulate competing railroads. Almost 80 years ago, in the Carter Coal case, the Court ruled that vesting such authority in a private entity is “delegation in its most obnoxious form.”
ACTA’s amicus brief invokes the Higher Education Act to show why the concerns raised by AAR are not unique, and contends that the Congress has improperly, and unconstitutionally, delegated unreviewable legislative power to accreditors in their gatekeeping role over billions in federal student financial aid.
“The Supreme Court needs to make clear to Congress that it cannot delegate its powers to self-interested private parties,” said Anne D. Neal, ACTA president. “And Congress needs to understand that its delegation of virtually unbridled authority to private accrediting bodies in the HEA is both unconstitutional and a regulatory failure. If Congress really wants to protect students and taxpayers, the best way to do so is to remove accreditors from this gatekeeping role.”
The brief relies extensively on ACTA’s critiques of accreditation, including its 2012 complaint to the Department of Education after the Southern Association of Colleges and Schools placed the University of Virginia on warning. ACTA noted at that time that the accreditor action had nothing to do with ensuring educational quality—as required by the statute—but amounted to a power play by the accrediting body and interference in matters dictated by state law.
“Accreditation is a system that is supposed to protect students and taxpayers, but this brief shows that it provides virtually no oversight,” said Neal. “One look around the higher education landscape—increasing tuitions, bloated administrations, and limited cognitive growth among students—and it’s clear that the system designed to provide accountability isn’t working properly.”
The case is slated for argument on Dec. 8.