Ass'n of Am. Railroads v. U.S. Dep't of Transp.

Dissenting opinion filed by Circuit Judge Tatel.

Millett, Circuit Judge *541A dispute between passenger and freight trains over priority access to railroad tracks has turned into a legal donnybrook over the bounds of congressional power. This court previously held that Congress went off the constitutional rails by empowering Amtrak to establish metrics and standards affecting track usage over the opposition of the private freight railroads that own those tracks and without the intermediation and control of a neutral governmental decisionmaker. More specifically, this court ruled that the Due…