I was tasked to write a far more comprehensive piece about Amtrak and the recent Supreme Court Ruling and the Amtrak reauthorization bill currently in the Senate. I think I’ll talk about them in reverse order.
The funny thing about Amtrak (well, there are a lot of funny things but we’ll perhaps get to that) is it generally has bipartisan support. There’s always been an effort to kill it, almost from the beginning, but the most “anti” votes Amtrak has received, at least in the last 15 years, is 171. Enough Republicans either like Amtrak or see its benefit to keep the railroad in operation.
As far as bills go, even from a somewhat hostile House of Representatives, it’s not exactly terrible. It doesn’t zero out Amtrak’s funding. It allows passengers to bring their pets. It allows people to bring their bikes. It keeps the Northeast Corridor’s profits in the Northeast Corridor—a corridor with significant and very expensive needs. It finally eliminates the food-service punching bag of the GOP’s, although not to (in my opinion) passenger benefit. You can read the bill in full here.
One thing that I thought was new but actually is a carryover is the Alternate Passenger Rail Service Pilot Program. In short (long version is here), if a railroad wants to jump back into the passenger game, it can do so under a defined and strict set of rules. I’m curious as to why it made a reappearance when FRA has already developed rulemaking for such a pilot. I can only conclude that its reappearance, despite it already being law, maybe signals a future partial privatization of some routes although both the 2008 law and this bill allow for only 2 intercity routes to be bid out to a private railroad as part of the pilot program. There were no takers last time (Norfolk Southern wants guarantees that it won’t lose any money and I’m pretty sure CSX’s response was “LOL”) so we’ll see. I bet it’ll be the same.
Another thing that isn’t new but signals some action is the restoration of the rail route east of New Orleans, obliterated by Hurricane Katrina in 2005. In 2008 a working group was tasked to study the problem. Now they’re tasked to restart service since the actual rail line has been rebuilt. I think that’s good—nothing irritates me more than endless planning studies, which I’ve long contended are done when no one wants to actively move forward with a project but wants to give the public—who let’s face it, doesn’t really pay that much attention—the sense that it’s actually doing something. I fully admit that this is a hypothesis for which I have little evidence.
So there’s nothing all that new. I am curious as to where the idea for the pilot program came from back in 2008. I doubt it was the railroads. They begged the government to let them out of the passenger business but unlike back in the 1960s and early 1970s, they’d now receive a subsidy not unlike the Essential Air Service, as I understand it, if one wanted to jump back in the game that is.
But, no HSR unlike in the 2008 bill (I think the $10 billion spent on HSIPR is it for the forseeable future outside of California and whatever investors pony up in Texas and Florida). No Amtrak expansion (difficult, for a railroad that doesn’t own the vast majority of the tracks its route network travels over). Food service is going to get a lot more expensive, and you can bring your dog and your bike. Congress didn’t kill it, but they really want Amtrak to act more like a business (and yes, I know that quite a few Republicans would happily turn the Northeast Corridor over to someone like Virgin Trains if they could.)
But there’s a snag in this fairly obvious plan to make Amtrak run like a business. SCOTUS has said “No.” to all of that.
On March 5th we got one of those 9-0 rulings that on the surface seemed to settle some matters. In the past I’ve described Amtrak as a kind of P3 (Public-Private Partnership). The DC Circuit said in 2013 that Amtrak was a private entity. Congress seems to think it’s a business and should be run as such. At best it’s a quasi-governmental organization. SCOTUS finally said no—“Amtrak was created by the government, is controlled by the government, and operates for the government’s benefit” Justice Kennedy, who wrote the opinion for the majority, writes.
Sounds great, right? Well, it appears the devil is in the details.
SCOTUS found issue with three pretty major things. First, they found issue with the governing board of Amtrak. The President appoints the board members---this includes the Secretary of Transportation. The Board then chooses its own President. Now this might be fine if Amtrak is a P3 or a something like that (although even there, I’m not sure), but SCOTUS has stated it is not—Amtrak is 100% the government. How government officials are chosen is part of the Constitution, and SCOTUS has tasked to DC Circuit to decide if Amtrak’s arrangement for choosing its President violates the Constitution.
Next, they found issue with what set off the initial legal dispute in the first place—the 2008 passenger rail law that gave Amtrak a very powerful role in controlling the freight railroads and setting standards so the trains can run on time. Did this violate due process? I feel compelled to point out that Amtrak’s trains have had the right of way since 1973. Now the 2008 law set out rules for how Amtrak could settle its disputes with the freight railroads over the standards it sets with the selection of an arbitrator and SCOTUS took issue with this as well, Alito in particular. There is a constitutional principle that Congress can’t give away its own legislative powers- the non-delegation clause, discussed a few weeks ago. They tasked the DC Circuit to look at both the due process issue and the non-delegation issue and determine whether they violate the constitution. Alito (and yes, I read it, you can download the ruling and the oral arguments from December here) spent five pages nitpicking over the point about arbitrators.
This could be a really big deal and it seems pretty likely that this will go through the Circuit Court and end up back at SCOTUS. The only other option is some sort of Congressional intervention, and with this Congress, I seriously doubt anyone wants that. Who knows what nonsense they’d come up with.
A Federal agency tasked with passenger rail and passenger rail only might be best, but that doesn't solve the ownership of rails problem without--this is my opinion, a return to a far, far more authoritarian planning regime akin to the one that got us much of our interstate highway network. I also doubt this Congress, or even a Democratic one, would suggest this. It's rather telling that out of the dozen or so really passenger rail friendly states only California is building a public HSR network. No one in New England is, nor are they remotely all that interested beyond the planning stage. New York State has a Democratic governor hostile to transportation that isn't road related. Maryland isn't. Delaware isn't outside of a feasibility study paid for by ARRA. Illinois did what it could and Washington and Oregon really aren't bothering. We'll see what happens in Texas and Florida. I really like rail but outside of the bubbles of Daily Kos, transit advocates, and rail fans (I fall into all three) I just don't think the interest is really there amongst the politicians of either party or the general public.
More commentary can be read here, and here, and here. Oh, and here.