It's a train, and it's a "governmental entity."

Photographer: Mat Hayward/Getty Images for Amtrak

When All Nine Justices Agree

Cass R. Sunstein is a Bloomberg View columnist. He is the author of “The World According to Star Wars” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”
Read More.
a | A

Is law just a form of politics? Is the Supreme Court highly politicized? If you focus on the court’s anticipated divisions over Obamacare and same-sex marriage, you probably think so. But the court’s two dissent-free decisions Monday offer a different picture. They are a triumph for the ideal of a Supreme Court that focuses on law.

The more important of the two cases involved the authority of federal regulators. In 2006 (under President George W. Bush), the Department of Labor interpreted its regulations to say that mortgage-loan officers are exempt from overtime pay requirements. In 2010 (under President Barack Obama), the same department unsurprisingly changed its mind and concluded that banks had to pay that overtime.

The legal question in the case was this: Could the department simply announce that it had changed its view? Or did it need to go through the formal process of giving the public a chance to comment -- a process that could easily take a year or more?

The question is technical, but a big deal nonetheless. A Democratic administration will often disagree with the interpretations of its Republican predecessor, and if it has to go through the time-consuming public comment process to make a change, it will be delayed and possibly even stymied. (Note that, although I was administrator of the federal Office of Information and Regulatory Affairs from 2009 to 2012, I was not personally involved with the issues in either of the cases decided Monday.)

A prominent lower court -- the U.S. Court of Appeals for the District of Columbia Circuit -- has long insisted that any change in an interpretation does indeed have to go through public comment. But there's a big problem with that view: The law doesn’t support it.

True, the Administrative Procedure Act, which imposes the basic requirements, directs agencies to allow the public to comment when they initially issue binding regulations. But agencies don’t need to do that when they are merely issuing a new interpretation of a regulation already on the books. Without a single dissent, the Supreme Court castigated the lower court for ignoring the law: “Imposing such an obligation is the responsibility of Congress or the administrative agencies, not the courts.”

The second case involved Amtrak's complex legal arrangements. In 2008, Congress directed the Federal Railroad Administration and Amtrak to work together to issue “metrics and standards” with respect to the performance of passenger railroad services. Those metrics and standards matter. If a passenger train violates them -- for example, with a poor on-time performance record -- the Surface Transportation Board might investigate and seek damages.

The lower court struck down this arrangement on the ground that Amtrak is a private company, and Congress lacks the constitutional power to authorize a private company to set the rules for a whole industry.

The problem with this conclusion is simple: Amtrak is not a private company. The secretary of transportation holds all of its preferred stock and most of its common stock, and serves on its nine-member board of directors. Seven of the other board members are appointed by the president and confirmed by the Senate. Congress sets their salary -- and the president can fire them at will.

Congress has also regulated Amtrak heavily and given it large sums of money (in recent years, $1 billion annually). So it's no surprise that, again without dissent, the Supreme Court concluded that it acts as a “governmental entity” when it produces metrics and standards.

Those who consult yesterday’s opinions will notice that while all members of the court agreed with the two results, several wrote independently to specify their own reasons. Indeed, in both cases, Justice Clarence Thomas’s separate opinions were much longer than the court’s. (He isn't exactly a fan of administrative agencies, and he outlined his views about how the Constitution limits the authority of those agencies.)

But on the central legal questions, the court went 9-0 twice. Sure, many problems divide the justices along ideological lines, and some of their legal disagreements seem dispiritingly political. But sometimes the law is clear, and every member of the court sees it clearly. 

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Cass R Sunstein at csunstein1@bloomberg.net

To contact the editor on this story:
Mary Duenwald at mduenwald@bloomberg.net