Could Passenger Rights Fall in the Supreme Court?

By Jim Mathews / President & CEO

We expect a Supreme Court ruling in June in a Federal regulations case that could shape how – or whether – late Amtrak passengers get help from the Federal Railroad Administration and the Surface Transportation Board, but based on oral arguments this week it’s hard to forecast how it might go.

Recall that I explained on January 5 that the Loper Bright Enterprises case, nominally about whether the government can require commercial fishing boats to pay for Federal inspectors on board their vessels, could veer into a larger discussion about whether courts should defer to regulators’ expertise when Congress leaves detailed questions open. And if the Supreme Court decides to jettison that entire doctrine – called “Chevron deference” – it could hobble the FRA and STB in efforts to defend passengers’ rights.

The Supreme Court has three choices in front of it. It’s very possible that the Court could sidestep the larger Chevron issue and simply decide on the merits whether the Marine Fisheries Service overstepped its authority as contained in the Magnuson-Stevens Act, which covers how fisheries in Federal waters are managed. Or they could chip away at the standards laid out in Chevron deference tests without throwing out Chevron outright. But using this case as a way to overturn Chevron outright is at least a possibility, and this is one that all passenger-rail supporters ought to watch very closely.

Perhaps the most surprising colloquy during this week’s oral argument came from Justice Brett Kavanaugh, who handled many Federal administrative law cases as a judge on the D.C. Circuit Court of Appeals and who, presumably, understood the nuances of how the deference doctrine is applied. In his questioning, at least, however, he came out swinging hard against Chevron and contending that one of its strongest current defenses – that companies and industries over 40 years have come to rely on the Chevron-based administrative law regime as a framework within which to work – falls flat.

“Chevron itself ushers in shocks to the system every four or eight years when a new administration comes in, whether it’s communications law or securities law or competition law or environmental law,” he said. “It’s just a massive change that is at war with reliance.”

Fellow conservative Amy Coney Barrett, however, seemed to take the side of reliance, pointing out that more than 15,000 settled cases exist today that have cited to Chevron as their basis.

“Maybe nothing happens immediately to those cases but isn’t the door then open for litigants to come back?” she asked. “Isn’t it inviting a flood of litigation, even if for the moment those holdings stay intact?”

Indeed. And then there’s the overall notion enshrined in the Chevron doctrine, which we believe makes sense and strikes a balance between giving courts the ability to correct agencies when they overstep while also ensuring that, as a policy matter, we let experts apply their expertise within the framework Congress creates. Justice Ketanji Brown-Jackson said she saw Chevron as “doing the very important work of helping courts stay away from policy making.”

Justice Elena Kagan used disputes over artificial intelligence to illustrate the pitfalls of taking experts out of the loop, which would mean either requiring Congress to lay out every possibility in the laws that it writes or replacing experts with the judgment of the courts when the law is more general than specific.

“Congress knows that there are going to be gaps, because Congress can hardly see a week in the future with respect to this subject, let alone a year, or a decade in the future,” Kagan said. “Does the Congress want this Court to decide those questions — policy-laden questions — of artificial intelligence?”

Solicitor General Elizabeth Prelogar was there to present the government’s case on behalf of the Fisheries Service, and under questioning from Justice Gorsuch, she succinctly laid out why the Chevron deference standard has worked so well over the past 40 years when it comes to handling precisely the kind of situation Kagan described.

The attorney for the fishermen “seems to suggest that in all statutory contexts, you can look and say, Congress dictated it, there is a binary answer” about what Congress means when it uses terms like “broadband” in telecommunications laws or “stationary source” when setting out laws about pollution emitters, Prelogar told Gorsuch.

“And what Chevron recognized and what I think is just absolutely true as a matter of the on-the-ground realities and how Congress legislates is that Congress doesn't actually decide all of these issues,” Prelogar continued. “What Chevron recognizes is that when Congress hasn't decided it and some follow-on person is going to have to fill in the gap, and it's a question of whether it should be the courts or the agency, there is a presumption here that Congress intended it to be the agency, but always subject to those guardrails about making sure the agency's construction is reasonable.”

Your Association hopes that the Justices decide that the best course here is not to jettison the Chevron tests in deciding whether the National Marine Fisheries Service overstepped by charging boat owners for Federal monitors, but simply to apply the Chevron standards and determine whether the Fisheries service’s interpretation of the law permitting inspectors was “reasonable.”

It's always difficult to read how a case might be decided based on just the questioning at oral arguments, but it seems right now that Justices Sotomayor, Kagan, and Brown-Jackson would retain Chevron, while Justices Alito, Thomas, Gorsuch, and Kavanaugh would likely overturn it. That leaves Justice Amy Coney Barrett and Chief Justice John Roberts as the potential “swing” votes in Loper Bright. Barrett seemed more concerned about reliance on precedent than her conservative colleagues, and Roberts’ real stance on this issue right now is unknown. Like Kavanaugh, Roberts was steeped in administrative law before he ascended to the Supreme Court. But Roberts did little to telegraph his intentions this week.

You can read a transcript of the oral arguments before the nine Justices by clicking here. My first blog post flagging this as an issue for rail advocates can be read by clicking here.