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Opinion analysis: Deciding — without deciding finally


In a ruling that may turn out to have a major impact on whether America’s passenger trains run on time, the Supreme Court ruled on Monday that Amtrak is a part of the government, but the Justices did not settle what government powers it will be allowed to use.  It will take at least another round in a federal appeals court, and probably a return to the Court, before the case of Department of Transportation v. Association of American Railroads is finally settled.

However, three opinions issued Monday raised considerable doubt that the authority to set standards to assure on-time performance of rail passenger service will remain as Congress dictated in a new Amtrak law seven years ago.   How that ultimately turns out, perhaps a couple of years from now, may depend on whether Congress takes the issue back into its own hands, and itself writes new rules.

The 2008 law at issue in a case that, at its core, was a basic dispute about the nation’s constitutional structure gave Amtrak a shared role with government agencies in writing — and enforcing — standards to control when railroad lines will be open to rail passenger traffic, ahead of freight traffic.   The tracks and related facilities are owned and operated by the freight railroads, but Congress has ordered them to defer to rail service as the top priority in using their lines.

What Congress basically had in mind was the creation of a regime with the specific aim of ensuring that railroad passengers leave stations on time, and arrive on time at their various destinations.  The freight lines were given little choice but to obey the standards written on that topic — and that may be part of the problem for that regime, from here on.

In reality, among a host of legal issues raised in this case, the only one that the Supreme Court definitely decided is that Amtrak is a government entity, not a corporation acting in a private capacity. “Amtrak,” the Court said, “was created by the government, is controlled by the government, and operates for the government’s benefits.”

That did settle the status question, overturning a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that Amtrak was a private entity that could not constitutionally be given the powers that Congress handed to it in 2008.   But the decision on that question merely gave rise, in the Court’s view, to a variety of other constitutional questions.

The controlling opinion in the Supreme Court was the one written by Justice Anthony M. Kennedy, which had the full support of seven other Justices — although one of them, Justice Samuel A. Alito, Jr., would have gone further, writing a separate opinion that strongly suggested that the entire 2008 law was constitutionally vulnerable.  Justice Clarence Thomas wrote a separate opinion for himself, supporting only the bottom-line ruling that Amtrak was governmental in nature.  Thomas used his lengthy historical analysis to criticize decades of Supreme Court rulings on the division of powers under the Constitution, saying the Court has repeatedly gotten it wrong.

The Kennedy opinion directed the D.C. Circuit, in reexamining the 2008 law and Amtrak’s role, to deal with three leftover constitutional issues — if those technically remain in the case when the case gets back to that lower tribunal.  (That question depends on whether the parties have kept those questions alive for a new look by the D.C. Circuit — an issue the lower court will first decide.)

First, the D.C. Circuit, according to the Kennedy opinion, must decide whether the arrangement for naming Amtrak’s president violates the part of the Constitution that dictates how government officials are chosen.  That issue arose directly out of the conclusion that Amtrak is a government entity.

Second, the D.C. Circuit must decide whether it violates constitutional “due process” to give one entity operating in the railroad business — Amtrak, the passenger service operator — a powerful role in controlling the activity of other parts of that industry — the freight railroads.

And, third, the D.C. Circuit must decide whether the arrangements for selecting an arbitrator to settle disputes that arise over the standards for use of railroad facilities violates the constitutional principle that Congress cannot give away its own legislative powers, and separately violates constitutional rules on how officials exercising government powers are to be chosen and put into office.

There is no timetable for the D.C. Circuit to decide those issues; that will depend upon what briefing and other procedural arrangements the court of appeals lays out for the next phase of the case.

Because the case raises very high stakes for both sides in this legal struggle — and, also, for the millions of Americans who travel on Amtrak’s passenger trains — it seems almost certain that the case will not end with the next round at the D.C. Circuit, but will return eventually to the Supreme Court’s docket for a final ruling.

At this point, only one possible option could settle the decision without waiting for the case to go through the courts: that would be if Congress decided, on its own, to step back in, and do itself more of the specific task of writing the standards that govern use of rail facilities to try to improve on-time passenger service.

The Court appeared to have little difficulty in concluding that Amtrak, as created by Congress in 1970 when it first created that passenger operating service and as the laws were later changed in 1973 and 2008, functioned largely as a government agency with wide powers (some shared with regular federal agencies) to provide the nation’s passenger service.

Among other attributes that the Court said stand out as indications of Amtrak’s public character is that, in its first forty-three years in operation, it got more than $41 billion in federal subsidies.  In recent years, the Court noted, it has been subsidized to the tune of more than $1 billion a year.

The Kennedy opinion seemed to suggest that the character of Amtrak, as government or private, was actually settled by the Court in a 1995 decision, ruling that Amtrak — like government agencies generally — has to respect the individual rights of America’s people.  That was a case about an artist who wanted to put a controversial display in Amtrak’s Penn Station in New York City, and claimed that Amtrak had violated his First Amendment rights.

Then, as in the decision Monday, the Court said the status of Amtrak was not controlled by Congress’s declaration in setting it up that it was a private corporation, working to operate a profitable business.

The D.C. Circuit had ruled that Congress had intended to set up a private, not a governmental entity, but that the Constitution would not allow Congress to give such a private entity the broad public powers that were provided in the 2008 law.

Monday’s decision, in plain English:

Since 1970, Amtrak has operated America’s passenger trains.   In return for letting the railroads then in existence off the hook to provide passenger service, which they had done with increasing losses, Congress required them to give Amtrak priority use of their tracks and other operating facilities.

In 2008, Congress had heard many complaints that passenger trains were running late, and concluded that the regular railroads were the obstacle keeping Amtrak trains from keeping to their schedules.  In that year, Congress passed a new law, setting up a complex system in which Amtrak and regular government agencies carrying out transportation policy would set standards for Amtrak’s use of the tracks and other facilities in the industry.

The trade association of the freight railroads — the Association of American Railroads — went to court to challenge that system.  It made several constitutional arguments, but the key one was that Amtrak as a private entity could not be given government-like powers to regulate the industry.  A federal appeals court agreed, striking down the key parts of the 2008 law after ruling that Amtrak is a private entity.

On Monday, the Supreme Court disagreed on that basic point, ruling that Amtrak is a part of the government.  But it then sent the case back to the appeals court to review several remaining constitutional issues over whether Amtrak can exercise some or all of the powers that Congress gave it in 2008.






Recommended Citation: Lyle Denniston, Opinion analysis: Deciding — without deciding finally, SCOTUSblog (Mar. 9, 2015, 1:04 PM),