Unable to attract a single judge’s sympathy in a federal appeals court, the Obama administration now faces a choice of trying once more to persuade the Supreme Court to salvage Amtrak’s role in managing how the nation’s trains use the tracks. The passenger rail service scored sort of a victory at the Court the last time, in 2015, but doing so again may be harder.
At issue in the case of Association of American Railroads v. U.S. Transportation Department is the role that Congress assigned to Amtrak in 2008, to join with federal officials in setting standards for passenger and freight trains to compete for use of the same tracks. In that role, Amtrak is supposed to help assure that the passenger trains run on time.
However, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit last April struck down Amtrak’s power to help write those standards and nullified the passenger service’s shared role in settling disputes over those standards. The administration had defended Amtrak on both of those questions.
The railroad association involved in the case is the trade group of the freight rail industry. It owns some 97 percent of the tracks on which its trains and Amtrak’s passenger trains operate. But Amtrak, according to Congress’s mandate, is supposed to have priority use of the tracks. Setting the standards for such use has the capacity to impose significant controls on how the freight railroads operate their service, and that is why they sought to undo the role assigned to the passenger line.
After the Circuit Court ruled against Amtrak last spring, the Obama administration tried to get the case reheard by the full Circuit bench — in this instance, 13 judges. But, earlier this month, the Circuit Court denied that request. It did not even take a vote before doing so, noting that no judge had asked for a tally on rehearing. No reason was given for the denial of en banc review. (The order is here.)
The government’s next move, if it chooses to fight on, would be a request for review by the Supreme Court. It would be no surprise if it made that attempt, since the government generally feels a duty to try to defend the constitutionality of national laws.
Faced with the obvious unanimity of the Circuit Court in refusing to reconsider, the Justices may have less incentive to take on the case anew. In its prior ruling in the case in March 2015, the Court rejected the freight railroads’ claim that Amtrak was a private entity, and thus could not constitutionally be given the task — even the shared task — of writing rules that regulated a competing private industry.
In that ruling finding Amtrak to be mainly a governmental entity, the Court did not pass upon the constitutionality of the two tasks that Amtrak had been assigned, jointly with a government agency, the Federal Railroad Administration. That issue was sent back to the Circuit Court, and the three-judge panel found new reasons to void both roles.
Because Amtrak competes with the freight lines for the use of the tracks, the Circuit Court declared, it is not a disinterested regulator of the standards for priority use of the tracks. Amtrak actually uses that power, the panel concluded, to help it make a profit. Giving it that kind of oversight, the panel found, violates the constitutional right of the freight lines to “due process.”
In the second part of the panel decision, it found that Amtrak’s shared role in setting up a process for deciding disputes over the track usage standards violates the procedure laid out in the Constitution for appointment of federal officers with government regulatory power.
As matters now stand, a petition to the Supreme Court by the federal government and Amtrak would go before an eight-Justice Court. It would take the votes of only four to grant review, but then the prospect would arise potentially of a 4-to-4 split on a final ruling. In that event, the Circuit Court ruling against Amtrak’s role would be upheld.