A D.C. Circuit panel held today that the Passenger Rail Investment and Improvement Act of 2008 (PRIIA) is unconstitutional. This is the second time the same panel has struck down the PRIIA (the first time the panel was reversed by the Supreme Court). The panel’s primary holding is that “the PRIIA violates the Fifth Amendment’s Due Process Clause by authorizing an economically self-interested actor to regulate its competitors.” The panel also devotes a few pages at the end to an Appointments Clause issue far too complicated for synthesis here, along with a lengthy block quote from John Steinbeck’s East of Eden. I’ll set aside the Appointments Clause question for present purposes and focus on the due process part of the decision.

First, a bit of background: Congress created Amtrak in 1970 and tasked it with running a passenger rail service. Amtrak doesn’t own most of the tracks that its trains run on; instead it uses (and pays for the right to use) tracks owned by freight railroads. In 1973 Congress required the freight railroads to give Amtrak preference over their own trains on their tracks and at junctions and crossings. And yet as anyone who grew up along the Northeast Corridor at the end of the 20th century can attest, the 1973 law didn’t result in Amtrak running smoothly. So in 2008 Congress passed the PRIIA with the hope of making sure that the freight railroads would clear the way for Amtrak’s trains to run on time.

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