Amtrak Priority Law Goes to Supreme Court (Decided 3/9/15)

[tonys96]

You mean *gasp* if they uphold the constitution?

Can you tell me exactly what in the constitution you are referring to? I will gladly look it up!

Not in the constitution, but in settled law, is the proposition that RRs are "common carriers", that is how they can obtain right of way by eminent domain, retain right of way through the middle of cities and towns, exert sole control over the said rights of way, ignore all state and local rules and ordinances (READ: Federal law governing "common carriers" {FRA} supersedes local rules/laws) and just about do anything they darned well want to do. The catch is this: In order to obtain/keep the "common carrier" designation, they must prove a service that is for the common good. Moving freight from here to there is not a qualifier, not all trucking/shipping firms are designated as "common carriers" in this manner. One of the requirements put on RRs way back when, in order to get public land for right of way, and get eminent domain power, was to move pax. That requirement was lifted when Amtrak was formed, but at that time, as a concession, Amtrak was to get this priority designation. That was part of the deal.....

No other freight moving industry enjoys the "rights" that RRs have. Ex. A trucking firm cannot have sole use of the inside lane of a highway, while UP can have sole power over a track placed in public owned land with a "right of way" being there. If they are willing to give these rights up, then they would be free to operate as fully independent entities, until then, they have commitments to follow, one being giving Amtrak priority.

 

[neroden]

The case was decided wrong by a particularly infamous hack on the lower court, who declared that Amtrak was a private company in competition with the freight railroads, and as such could not be delegated regulatory power; and further decided that even the FRA "consulting" with Amtrak constituted delegated power. This is a stretch to say the least, given that other rulings (such as the one throwing out American Financial Group's claims in relation to Amtrak stock) have ruled that Amtrak is a government agency.

I suspect that it is the conflict over whether Amtrak is a government agency for this purpose which caused the Supreme Court to take the case. We'll probably read some well-reasoned opinions on both sides by those members of the court who are impartial. Unfortunately, the decision will involve a vote which will include members who may not be impartial. Though I don't actually know if the routinely-prejudiced Justices care one way or another about Amtrak; if they really don't care, they might be able to issue good opnions too. Even Bismarck was said to be a fair mediator when German interests weren't involved (but when German interests were involved, God help you.)

 

[tonys96]

Has the SCOTUS ever ruled if the Postal Service is a government entity? Seems to be a reasonably fair comparison......

 

[Anderson]

Ok, a couple of things:
(1) The only reason there's no competition between the Silvers and Crescent and the other services on the NEC is because Amtrak doesn't allow it. Considering that a one-way Acela FC ticket can run close to $400 while a roomette will often run much closer to $200 (i.e. on par with Regional BC), there IS room for competition, particularly southbound.
--As noted by Ryan, however, there's not nearly the capacity needed to make a dent here given the ridership numbers. You have about six sleepers worth of space on an average day (3 Meteor, 2 Star, 2 Crescent but with about a sleeper's worth of space taken by crew) which comes to somewhere around 108-120 passengers in each direction. Even filling that up every day of the year would get you <90k spaces, while Acela First Class runs somewhere around 350k/yr.

(2) As to the Supreme Court, I'm not sure where the alleged disregard of internal precedent is coming from...but that's a far different discussion. Longer-term disregard of precedent is less of an issue IMHO, if only because there are plenty of cases where you can argue that the court has made some impressively bad rulings.

(3) On the issues of the law, the issue at hand is not the original law (from 1970/71) but the new law (from 2008). The best way I can think of the RR's argument is that the government, nearly 40 years later, imposing a priority system that Amtrak gets to be party to developing but they don't as akin to a certain scene in The Empire Strikes Back. In a sense, had the FRA consultation process been in the initial bill in the 70s it is likely the RRs would lose on the grounds that they contracted to it as part of joining Amtrak and being relieved of their passenger commitments. Now, the argument exists that (notwithstanding agreements with individual states) while they might be bound over by whatever terms were imposed on them in the 1970s, they shouldn't be subjected to additional new terms heaped on a deal nearly 40 years after the fact. Let's be honest, if they had been informed of this sort of issue, I suspect there would have been more Amtrak holdouts among the wealthier roads/ones with better-performing routes (this might have tipped the balance at ATSF, for example, and Southern might have held out for a straight discontinuation).

 

[Devil's Advocate]

So when the class one railroads win how much extra will Amtrak have to pay in order to buy priority dispatching?

 

[PRR 60]

The case was decided wrong by a particularly infamous hack on the lower court, who declared that Amtrak was a private company in competition with the freight railroads, and as such could not be delegated regulatory power; and further decided that even the FRA "consulting" with Amtrak constituted delegated power. This is a stretch to say the least, given that other rulings (such as the one throwing out American Financial Group's claims in relation to Amtrak stock) have ruled that Amtrak is a government agency.

I suspect that it is the conflict over whether Amtrak is a government agency for this purpose which caused the Supreme Court to take the case. We'll probably read some well-reasoned opinions on both sides by those members of the court who are impartial. Unfortunately, the decision will involve a vote which will include members who may not be impartial. Though I don't actually know if the routinely-prejudiced Justices care one way or another about Amtrak; if they really don't care, they might be able to issue good opnions too. Even Bismarck was said to be a fair mediator when German interests weren't involved (but when German interests were involved, God help you.)

It was more than FRA "consulting" with Amtrak. The law required the FRA to set specific on-time standards that were enforceable by financial penalties. The issue was that the law granted Amtrak with veto power over the standards. Essentially, FRA had to set standards that Amtrak approved. In the absence of Amtrak approval, no standards could be set.

The court ruled that Amtrak was a private entity, and that granting Amtrak veto power over the standards developed by the FRA, standards enforceable by federal fines, unconstitutionally granted law making authority to a private company. If Amtrak had only been identified as a party to be consulted with the FRA having the final say, there would not have been an issue.

For the record, the ruling has nothing to do with the existing requirement that host railroads grant "priority" to Amtrak. That requirement is still in force. The problem with the priority requirement is what does "priority" mean and how is it measured? The purpose of the on-time standards was to set specific and measurable requirements that could be enforced by the STB without getting in any discussion of what is or is not "priority." It was a great idea had Amtrak not insisted that they had to be in charge of setting those standards. They got what they wanted, and now they are before the Supreme Court to try and get it back.

 

[Ryan]

This graph from Amtrak's presentation to Congress in April is somewhat relevant here.

Hopefully Congress acts quickly to sidestep the issue and we can go back towards decent OTP.

 

[gmushial]

The case was decided wrong by a particularly infamous hack on the lower court, who declared that Amtrak was a private company in competition with the freight railroads, and as such could not be delegated regulatory power; and further decided that even the FRA "consulting" with Amtrak constituted delegated power. This is a stretch to say the least, given that other rulings (such as the one throwing out American Financial Group's claims in relation to Amtrak stock) have ruled that Amtrak is a government agency.

I suspect that it is the conflict over whether Amtrak is a government agency for this purpose which caused the Supreme Court to take the case. We'll probably read some well-reasoned opinions on both sides by those members of the court who are impartial. Unfortunately, the decision will involve a vote which will include members who may not be impartial. Though I don't actually know if the routinely-prejudiced Justices care one way or another about Amtrak; if they really don't care, they might be able to issue good opnions too. Even Bismarck was said to be a fair mediator when German interests weren't involved (but when German interests were involved, God help you.)

It was more than FRA "consulting" with Amtrak. The law required the FRA to set specific on-time standards that were enforceable by financial penalties. The issue was that the law granted Amtrak with veto power over the standards. Essentially, FRA had to set standards that Amtrak approved. In the absence of Amtrak approval, no standards could be set.

The court ruled that Amtrak was a private entity, and that granting Amtrak veto power over the standards developed by the FRA, standards enforceable by federal fines, unconstitutionally granted law making authority to a private company. If Amtrak had only been identified as a party to be consulted with the FRA having the final say, there would not have been an issue.

For the record, the ruling has nothing to do with the existing requirement that host railroads grant "priority" to Amtrak. That requirement is still in force. The problem with the priority requirement is what does "priority" mean and how is it measured? The purpose of the on-time standards was to set specific and measurable requirements that could be enforced by the STB without getting in any discussion of what is or is not "priority." It was a great idea had Amtrak not insisted that they had to be in charge of setting those standards. They got what they wanted, and now they are before the Supreme Court to try and get it back.

What's the expression: be careful what you ask for, 'cause you just might get it. ;-)

 

[gmushial]

This graph from Amtrak's presentation to Congress in April is somewhat relevant here.

Hopefully Congress acts quickly to sidestep the issue and we can go back towards decent OTP.

Would be nice to see that graph, but extending further to the left, ie, further back in time (so that one might get a better sense of the situation, and not just a potentially self-serving snippet).

 

[NW cannonball]

The law in question was a compromise, hack, kludge -- kick the bucket down the road sorta thing.

The rules that the agencies FRA, Amtrak, wrote - were not real good for train riders.

Nobody knows why SCOTUS took this -- some members of the Court might want to kill all non-profit corporations -- some might want to make more clear when and how the executive can make rules (that annoy their CC's -- wrong- I meant their friends CC's obviously - Justices are forever - but Scalia will explode from his own "brilliance" and pomposity sooner than later)

Anyhow - it's a complex bit of law, and we are all at the mercy of SCOTUS - no lobbying, no Campaign Contributions, we just wait and see.

The Court could decide to totally destroy Amtrak, and long distance travel. It could make a rule about rule-making.

Calm down -- carry on.

 

[PRR 60]

The case was decided wrong by a particularly infamous hack on the lower court, who declared that Amtrak was a private company in competition with the freight railroads, and as such could not be delegated regulatory power; and further decided that even the FRA "consulting" with Amtrak constituted delegated power. This is a stretch to say the least, given that other rulings (such as the one throwing out American Financial Group's claims in relation to Amtrak stock) have ruled that Amtrak is a government agency.

I suspect that it is the conflict over whether Amtrak is a government agency for this purpose which caused the Supreme Court to take the case. We'll probably read some well-reasoned opinions on both sides by those members of the court who are impartial. Unfortunately, the decision will involve a vote which will include members who may not be impartial. Though I don't actually know if the routinely-prejudiced Justices care one way or another about Amtrak; if they really don't care, they might be able to issue good opnions too. Even Bismarck was said to be a fair mediator when German interests weren't involved (but when German interests were involved, God help you.)

It was more than FRA "consulting" with Amtrak. The law required the FRA to set specific on-time standards that were enforceable by financial penalties. The issue was that the law granted Amtrak with veto power over the standards. Essentially, FRA had to set standards that Amtrak approved. In the absence of Amtrak approval, no standards could be set.

The court ruled that Amtrak was a private entity, and that granting Amtrak veto power over the standards developed by the FRA, standards enforceable by federal fines, unconstitutionally granted law making authority to a private company. If Amtrak had only been identified as a party to be consulted with the FRA having the final say, there would not have been an issue.

For the record, the ruling has nothing to do with the existing requirement that host railroads grant "priority" to Amtrak. That requirement is still in force. The problem with the priority requirement is what does "priority" mean and how is it measured? The purpose of the on-time standards was to set specific and measurable requirements that could be enforced by the STB without getting in any discussion of what is or is not "priority." It was a great idea had Amtrak not insisted that they had to be in charge of setting those standards. They got what they wanted, and now they are before the Supreme Court to try and get it back.

What's the expression: be careful what you ask for, 'cause you just might get it. ;-)

Isn't that the truth! I suspect there will be mixed emotions at Amtrak no matter which way this case is decided.

 

[afigg]

It was more than FRA "consulting" with Amtrak. The law required the FRA to set specific on-time standards that were enforceable by financial penalties. The issue was that the law granted Amtrak with veto power over the standards. Essentially, FRA had to set standards that Amtrak approved. In the absence of Amtrak approval, no standards could be set.

The court ruled that Amtrak was a private entity, and that granting Amtrak veto power over the standards developed by the FRA, standards enforceable by federal fines, unconstitutionally granted law making authority to a private company. If Amtrak had only been identified as a party to be consulted with the FRA having the final say, there would not have been an issue.

For the record, the ruling has nothing to do with the existing requirement that host railroads grant "priority" to Amtrak. That requirement is still in force. The problem with the priority requirement is what does "priority" mean and how is it measured? The purpose of the on-time standards was to set specific and measurable requirements that could be enforced by the STB without getting in any discussion of what is or is not "priority." It was a great idea had Amtrak not insisted that they had to be in charge of setting those standards. They got what they wanted, and now they are before the Supreme Court to try and get it back.

Thank you for posting the facts of the case. I was following this thread and wondered if someone was going to clarify what the legal issue really is, not railing against this or that. The simplest way to resolve the dispute is for Congress to change the language in an appropriations bill, the Amtrak re-authorization bill if that ever gets through Congress, or insert a couple of sentences changing the law in the patch to keep the Highway Trust Fund from running out of money. If Congress fixes the law before the Supreme Court hears the case and issues a ruling, the Supreme Court would drop the case. A technical fix to have the FRA clearly in charge of setting the standards should not be that controversial, although I would expect a Tea Party type or two in the House will try to add an anti-Amtrak amendment to any bill with Amtrak mentioned in it in a floor vote.

 

[Anderson]

The SC might still hear the case regardless. The question of mootness is a tricky one, and the SC has asserted the ability to hear a moot case regardless under some circumstances.

 

[neroden]

(2) As to the Supreme Court, I'm not sure where the alleged disregard of internal precedent is coming from...but that's a far different discussion.

Read the Sotomayor dissent in Wheaton College. I can find other examples, but that's an obvious and recent one.
She outright accuses the majority of overturning a 4-day-old precedent. (And she's right.) She also explains that they are grossly violating previously uncontroversial standards for emergency interlocutory injunctions, as confirmed in an opinion by Rehnquist from 1993.

 

[gmushial]

(2) As to the Supreme Court, I'm not sure where the alleged disregard of internal precedent is coming from...but that's a far different discussion.

Read the Sotomayor dissent in Wheaton College. I can find other examples, but that's an obvious and recent one.
She outright accuses the majority of overturning a 4-day-old precedent. (And she's right.) She also explains that they are grossly violating previously uncontroversial standards for emergency interlocutory injunctions, as confirmed in an opinion by Rehnquist from 1993.

Thanks for doing the legwork... I think many of us have known and accepted such as fact (too many references to such in non-partisan sources), but have never gone to the effort to find examples. Again: thanks.

 

[The Whistler]

Here is the straight scoop. If a politician has an Amtrak train running through his district, he is pro rail and if not he's anti-rail.

 

[WoodyinNYC]

Here is the straight scoop. If a politician has an Amtrak train running through his district, he is pro rail and if not he's anti-rail.

Nonsense. Total nonsense.

One easy example to the contrary. The Southwest Chief and

the Sunset Limited both pass thru Arizona. But Senator John

McCain has NEVER been a friend to Amtrak. He favors spending

hundreds of millions every year subsidizing air service to remote

locations, but hates the idea of helping the millions of Amtrak riders.

Numerous other examples exist.

 

[CHamilton]

At 11 a.m. Monday, the Supreme Court will explore the constitutional limits on Congress’s authority to hand off some of its power to make national policy to others.....The Department of Transportation has drawn the support of only one amicus brief, filed by four groups that advocate for intercity rail passenger travel. Those groups asserted that, after the court of appeals nullified the “metrics and standards,” Amtrak’s on-time record began to falter, and that this has resulted in declining ridership.

http://www.scotusblog.com/2014/12/argument-preview-a-doctrinal-trip-back-to-the-1930s/#more-222468

 

[jis]

You can find a copy of all the briefs filed in toto at:

http://www.americanbar.org/publications/preview_home/13-1080.html

 

[CHamilton]

A short backgrounder for folks with less knowledge than you folks here on AU, with a link to SCOTUSblog's coverage of the oral arguments. http://www.growtrains.com/will-amtrak-trains-run-on-time/

 

[CHamilton]

AP story on the court's deliberations. http://abcnews.go.com/Politics/wireStory/justices-divided-amtrak-regulatory-role-27448927

USA Today story: http://www.usatoday.com/story/news/nation/2014/12/08/supreme-court-amtrak-trains/20098775/

Washington Post: http://www.washingtonpost.com/politics/courts_law/court-considers-whether-amtraks-self-created-standards-are-federal-regulations/2014/12/08/de23e8f6-7f18-11e4-8882-03cf08410beb_story.html

 

[Anderson]

On the one hand, this is the result of 45 years of bungling which have put what the law says in almost total conflict to the effect of the law (e.g. Amtrak is a for-profit corporation on paper, but a government agency in effect).

One worthwhile point: To my knowledge, excursions notwithstanding, none of the Class Is run any passenger services without municipal subsidies/contracts at this point...so I do hope someone made a point that, as Amtrak is almost exclusively a passenger operator with a very small freight operation (spare space in the baggage cars) while the Class Is don't engage in any passenger operations. Only FEC would be in a real position to argue about running their own trains and competition there, but as things stand Amtrak competes with the Class Is in the sense that a trucking company competes with Megabus. It should also be pointed out that for the majority of the trains that Amtrak operates, they're technically under contract from one or more states to do so...so in many cases this is one government-owned entity doing something on behalf of other government-owned entities.

 

[jis]

The Economist coverage: http://www.economist.com/blogs/democracyinamerica/2014/12/congress-and-amtrak

The justices travelling the Northeast corridor may find their Amtrak routes running late more often if the company is forced to give freight competitors a fair shake.

I suppose the Economist did not do its homework on who owns the Northeast Corridor. Oh well. All this is likely hard to keep track of from London.

 

[CHamilton]

The Economist coverage: http://www.economist.com/blogs/democracyinamerica/2014/12/congress-and-amtrak

 

[neroden]

The review of oral arguments say that most of the justices are rejecting the idea that Amtrak is a private company for constitutional purposes, period. Which makes sense, as they have written precedent to the contrary themselves, fairly recently. They all agree that Amtrak is a government operation.

Unfortunately, judging by the oral argument, some of the right-wing justices are now attempting to resurrect Lochner-era law, from the infamous period when the Supreme Court struck down minimum wage laws using bogus, invented-out-of-the-whole-cloth Constitutional theories, claiming that they were an interference with business. (And claiming that this is unconstitutional, which is the bogus part; any honest reading of the Constitution pretty much says that Congress can regulate businesses.) They are inventing bogus "due process" arguments why the government should not be allowed to regulate the Class I railroads at all.

That won't end well. The Lochner era led to the union wars; if the legal system doesn't work, people will take up arms against private corporations in defense of their rights, as they did back in the Lochner era. The Lochner precedents were repudiated, and several justices specifically mentioned this and rebuked the "justices" who were trying to revive them.

Hopefully a majority will follow modern precedent and rule that the government can pretty much regulate railroads however it likes. Otherwise they are inviting trouble well beyond Amtrak.