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51 Wake Forest L. Rev. 881 (2016)
Defining Lawmaking Power

handle is hein.journals/wflr51 and id is 915 raw text is: DEFINING LAWMAKING POWER Kimberly L. Wehle* INTRODUCTION What is the constitutional lawmaking power? In Department of Transportation v. Association of American Railroads,1 the Justices expressed a spectrum of tolerance for legislative delegations: banning the exercise of any lawmaking power by an entity other than Congress on one end, and condoning legislative delegations to agencies but not to the private sector on the other.2 Whether Congress's quintessential constitutional role-lawmaking-is exclusively for Congress has enormous practical as well as theoretical implications. Association of American Railroads involved a challenge to legislation authorizing Amtrak to jointly formulate with a federal agency metrics and standards for the performance and scheduling of passenger railroad services.3 The Court remanded to the Court of Appeals for the D.C. Circuit a number of issues of constitutional importance, including whether such metrics and standards reflect the exercise of 'rulemaking' authority or permit Amtrak to 'regulate other private entities' so as to trigger nondelegation concerns.4 Yet the question articulated for remand merely begs another one: how should constitutional lawmaking power be defined? In his concurrence, Justice Alito characterized the ban on congressional delegations of legislative authority as existing to ensure accountability checkpoints.5 At the same time, he acknowledged that agencies function under the guise of executive power in ways that resemble lawmaking.6 Justice Thomas wrote separately to define certain core functions that require the exercise of legislative power and that only Congress can perform as including the * Formerly Kimberly N. Brown. Associate Professor of Law, University of Baltimore School of Law. B.A., Cornell; J.D., University of Michigan. Thanks to Adeen Postar, Jared Lerner, and Emily Steiner for valuable research assistance. 1. 135 S. Ct. 1225 (2015). 2. Id. at 1228. 3. Id. 4. Id. at 1234. 5. Id. at 1237 (Alito, J., concurring). 6. Id.