"We have come to a strange place in our separation-of-powers jurisprudence."

"Confronted with a statute that authorizes a putatively private market participant to work hand-in-hand with an executive agency to craft rules that have the force and effect of law, our primary question�indeed, the primary question the parties ask us to answer�is whether that market participant is subject to an adequate measure of control by the Federal Government. We never even glance at the Constitution to see what it says about how this authority must be exercised and by whom."

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....