Relying anew on a New Deal era precedent of the Supreme Court, the nation’s freight railroads have urged a federal appeals court to leave intact a ruling that strips the Amtrak rail passenger service of much of its power to make sure that its trains run on time.

The case against Amtrak should end with no further court review, the freight companies’ trade group, the Association of American Railroads, argued in a filing July 15 in the U.S. Court of Appeals for the District of Columbia Circuit. Amtrak, with full support from the Justice Department, is seeking a new review before the full D.C. Circuit bench.

Now that the freight lines have answered that request, the case is ready for the full D.C. Circuit to cast  a vote for or against review.  That court has said it would not accept a further filing by Amtrak and the Justice Department.  It will take a vote of a majority of the eleven-judge D.C. Circuit to grant en banc review.

Even if en banc review is denied, the case seems likely to reach the Supreme Court (for a second time), because it involves the constitutionality of a federal law, and the government generally feels a duty to try to defend against the nullification of such a law.

The nation’s freight railroads actually own some 97 percent of the 22,000 miles of track over which Amtrak runs its passenger trains.  (The only significant exception is that Amtrak owns the tracks for its Northeast Corridor service between Washington, D.C., and Boston.)

Under a 2008 law, Amtrak is given shared authority with federal railroad officials to set the standards for competing use of the same tracks, and Amtrak is allowed to have priority to those tracks as part of a demand by Congress that it make major efforts to assure on-time passenger service.

The freight lines, though, argue that Amtrak has been put in a position to serve its own profit-making goal, at the freight railroads’ expense, with them having to make costly adjustments to their service in order to give way to passenger trains.

So far, the freight lines are winning their constitutional challenge to that 2008 law.  Three years ago, the D.C. Circuit ruled that Congress had acted unconstitutionally in handing over the authority to regulate rail track use to Amtrak as a private entity.   The Supreme Court ruled last year that Amtrak is a government for-profit corporation, at least when it joins in defining track-use standards.

When the case returned to the D.C. Circuit, a three-judge panel again ruled against Amtrak, relying on the Supreme Court’s 1936 decision in Carter v. Carter Coal Co. — one of the major rulings by the Court in striking down parts of President Franklin Roosevelt’s New Deal.  The Carter decision nullified the power of coal companies to set wages and hours that governed their competitors in the industry.

Amtrak, the panel declared, uses its joint authority over track use to support its own profit potential, at the expense of the freight lines that compete for use of the same tracks.  The panel also ruled that the method for picking an arbitrator to work out disputes over those standards violates the Constitution’s requirement on how federal officials are to be named to their jobs.

in arguing that those rulings should be left undisturbed, the freight railroads contended that the 2008 law is unprecedented in constitutional history, and, in any event, is unnecessary to achieve Congress’s desire that the rail industry work together to arrange for cooperative use of the tracks.

The lawyers for Amtrak and the Justice Department, the new filing asserted, have had a hard time proving that striking down the 2008 law would have a major impact on rail service in the nation.