Calls for accreditation reform are gaining momentum in Washington. Just yesterday, two separate committees—the National Advisory Committee on Institutional Quality and Integrity (NACIQI) and the U.S. Senate Committee on Health, Education, Labor, and Pensions—considered changes to the current system of university accreditation. NACIQI held a conference call to discuss its most recent set of proposals and the Senate committee released a white paper with similar proposals.
But the bigger news on the issue of accreditation is from the Supreme Court, which ruled earlier this month on Department of Transportation v. Association of American Railroads. At the center of the case was the question of whether Amtrak is a governmental body or a private entity.
Recognizing the precedence that the ruling on Amtrak’s status could set for similar rulings on accreditation agencies—which also blur the line between private entity and government agency—ACTA, along with several allies, submitted an amicus brief to the Court.
Our brief urged the court to name Amtrak for the private entity it is and to recognize the impropriety of a system in which Amtrak sets standards for other railroad operators. Much like the current accreditation system, this is an instance of regulatory capture where a private entity was given the power to regulate its own industry and expected to resist the urge to advance its own special interests for the good of the sector. It takes a heavy helping of wishful thinking to expect such an outcome.
Unfortunately, the Supreme Court found Amtrak to be a governmental body and remanded the case to a lower court to be considered again, with this in mind. But hope is far from lost. The Court ruled as narrowly as possible in favor of Amtrak, leaving many of the accountability questions raised by ACTA and fellow amici open to be decided by the lower court. The following questions remain:
Is the structure of the Amtrak board (namely, the process in which the board selects a president without input from the administration or Congress) consistent with the Appointments Clause of the Constitution?
Does use of private arbitration to settle disagreements between Amtrak and other parties violate the non-delegation principle?
Does delegation of authority to Amtrak to set rules for other market actors violate the Due Process Clause of the Constitution?
In addition to raising these questions, the ruling confirms the spirit of ACTA’s argument: bodies which straddle the line between public and private deserve great scrutiny and must be held accountable to Congress. The majority opinion confirmed that, regardless of its application in this particular case, the non-delegation principle remains good law.
Justice Samuel Alito’s concurring opinion agreed: “This case, on its face, may seem to involve technical issues, but in discussing trains, tracks, metrics, and standards, a vital constitutional principle must not be forgotten: Liberty requires accountability.” His opinion went on to affirm many of the principles laid out by ACTA’s amicus brief. And Justice Clarence Thomas went even further in his concurring opinion, raising serious doubts about the constitutionality of the administrative state as a whole, again echoing many of the principles that informed the arguments of ACTA and our fellow amici.