Am­trak helps gov­ern­ment ride off the rails

Cecil Whig - - OPINION - Ge­orge Will

— In 1906, Leonor Loree, an ac­com­plished rail­road ex­ec­u­tive, ex­am­ined the di­lap­i­dated Kansas City South­ern Rail­road that he had been hired to re­ha­bil­i­tate. Dis­mayed, he permanently en­riched Amer­i­can slang by ex­claim­ing: “This is a hel­luva way to run a rail­road!” Judge Jan­ice Rogers Brown of the D.C. Cir­cuit Court of Ap­peals, the na­tion’s sec­ond-most im­por­tant court, re­cently said, with ju­di­cial deco­rous­ness, es­sen­tially the same thing about Am­trak.

She was not re­fer­ring to its 46 con­sec­u­tive years of op­er­at­ing losses, which in­clude $306 mil­lion last year, and more than $16 bil­lion since 1970, when Congress cre­ated Am­trak as a fed­er­ally char­tered, for-profit cor­po­ra­tion. Rather, Brown was re­fer­ring to how Congress, by pil­ing “anom­aly on top of anom­aly,” has made Am­trak into a “wholly unique statu­tory crea­ture” — one em­pow­ered to reg­u­late its com­peti­tors. Am­trak il­lus­trates the ad­min­is­tra­tive state’s rou­tine drift into con­sti­tu­tional im­pro­pri­ety.

WASH­ING­TON

In 2008, Congress passed the Pas­sen­ger Rail In­vest­ment and Im­prove­ment Act (PRIIA), which en­dowed Am­trak with the pow­ers of a reg­u­la­tory agency that makes de­ci­sions, in con­junc­tion with the Depart­ment of Trans­porta­tion, about sched­ul­ing, uses of avail­able tracks, main­te­nance and other met­rics and stan­dards that com­pel cer­tain be­hav­ior by the en­tire U.S. rail in­dus­try. Freight rail en­ti­ties, which ac­tu­ally are pri­vate, un­der­stand­ably ob­jected, and the D.C. Cir­cuit agreed with them that PRIIA was an un­con­sti­tu­tional del­e­ga­tion of gov­ern­men­tal reg­u­la­tory power to a pri­vate en­tity.

In 2015, how­ever, the Supreme Court is­sued a through-the-look­ing-glass rul­ing wor­thy of Lewis Car­roll’s Humpty Dumpty (“When I use a word, it means just what I choose it to mean — nei­ther more nor less”). The court ac­knowl­edged that Congress has des­ig­nated Am­trak a pri­vate cor­po­ra­tion di­rected to max­i­mize rev­enues in or­der to min­i­mize the need for gov­ern­ment sub­si­dies. So, Am­trak is re­quired to be self-in­ter­ested. Yet the court held that be­cause Am­trak is in­di­rectly con­trolled by Congress, how­ever re­motely, it can also be con­sid­ered a gov­ern­ment en­tity.

Pas­sive courts, ac­com­mo­dat­ing the ad­min­is­tra­tive state’s ac­tiv­i­ties, are per­mis­sive about agen­cies’ reg­u­la­tory be­hav­ior that blurs the line be­tween leg­is­la­tion and reg­u­la­tion. But the Supreme Court re­turned freight op­er­a­tors’ chal­lenge to the D.C. Cir­cuit for answers to some re­main­ing ques­tions, in­clud­ing this one im­pli­cat­ing the Fifth Amend­ment’s due process guar­an­tee: May an eco­nom­i­cally self-in­ter­ested en­tity ex­er­cise reg­u­la­tory au­thor­ity over com­peti­tors?

Writ­ing for a unan­i­mous three-judge panel, Brown re­jected “a sim­ple way to re­solve this case,” re­fus­ing to adopt the naive hy­poth­e­sis that “Am­trak’s po­lit­i­cal ac­count­abil­ity — re­mote as it is — re­moves the taint of any po­ten­tial for bias.” In­stead, Brown wrote: “Our Con­sti­tu­tion’s in­ge­nious sys­tem of checks and bal­ances as­sumes gov­ern­ment of­fi­cials will act self-in­ter­est­edly.” She cited Alexan­der Hamil­ton from the first Fed­er­al­ist Pa­per: It would be nice if gov­ern­ment of­fi­cials’ de­ci­sions would al­ways be “un­bi­ased by con­sid­er­a­tions not con­nected with the pub­lic good,” but this is some­thing “more ar­dently to be wished than se­ri­ously to be ex­pected.”

Re­gard­ing Am­trak, Brown noted, “Congress del­e­gated its leg­isla­tive power to an en­tity that it de­signed to be the op­po­site of ‘pre­sump­tively dis­in­ter­ested.’” Among the chief con­cerns of the Framers of the Con­sti­tu­tion “were ques­tions of who should be per­mit­ted to ex­er­cise the awe­some and co­er­cive power of the gov­ern­ment.” The Due Process Clause, wrote Brown, “puts Congress to a choice: its char­tered en­ti­ties may ei­ther com­pete, as mar­ket par­tic­i­pants, or reg­u­late, as of­fi­cial bod­ies.”

The ob­vi­ous way to avoid such dan­ger­ous jum­bles of pub­lic and pri­vate re­spon­si­bil­i­ties is to never have such gov­ern­ment-char­tered en­ti­ties as Am­trak (and Fan­nie Mae, Fred­die Mac and oth­ers). “In­deed,” Brown warns, “gov­ern­ment’s in­creas­ing re­liance on pub­lic-pri­vate part­ner­ships por­tends an even more ill-fit­ting ac­com­mo­da­tion be­tween the ex­er­cise of reg­u­la­tory power and con­cerns about fair­ness and ac­count­abil­ity.”

This re­liance is another un­pleas­ant fea­ture of Amer­ica’s pre­dictable fu­ture. For al­most eight years, Barack Obama has had the courage of Woodrow Wil­son’s an­ti­con­sti­tu­tional con­vic­tion that the sep­a­ra­tion of pow­ers is an anachro­nis­tic in­con­ve­nience. It sup­pos­edly de­nies Amer­i­cans the bless­ings of what Pro­fes­sor Woodrow Wil­son of Bryn Mawr Col­lege called ad­min­is­tra­tors with “large pow­ers and un­ham­pered dis­cre­tion.” It will be at least four years be­fore even the pos­si­bil­ity of a pres­i­dent who thinks oth­er­wise.

There might never be another such pres­i­dent, now that the Repub­li­can Party is em­brac­ing a can­di­date for chief ex­ec­u­tive who em­braces Wil­son’s en­thu­si­asm for un­bounded ex­ec­u­tive power. Now that both par­ties re­gard con­sti­tu­tional con­ser­vatism as an in­con­ve­nient anachro­nism, Am­trak is a har­bin­ger of fu­ture bi­par­ti­san­ship: There will be the steady per­me­ation of os­ten­si­bly, but not re­ally, pri­vate en­ti­ties with gov­ern­ment’s pres­ence, which for a cen­tury has been pro­gres­sives’ con­sis­tent goal.

Ge­orge Will is a syn­di­cated colum­nist. Con­tact him at georgewill@wash­post.com.

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