(Joshua Roberts/Reuters)

The Supreme Court ruled Monday that Amtrak is more like a government entity than a private business, but several justices said there might be serious constitutional issues with the powers that Congress has entrusted to it.

The decision means there is still much litigation to come in a case in which the freight rail industry alleged that Amtrak was given too much power in setting standards for passenger rail service. Those standards and remedies for delays unfairly affected the freight industry, whose trains run on the same rails, the industry group said.

All the justices agreed to overturn the lower-court ruling in which the Association of American Railroads had prevailed at the U.S. Court of Appeals for the D.C. Circuit: that Amtrak was a strictly private entity and as such Congress was wrong in 2008 to set up a system that allowed it to issue regulations.

The lower court had based the decision on Congress’s command that Amtrak “is not a department, agency or instrumentality of the United States Government.”

But Justice Anthony M. Kennedy said saying so does not necessarily make it so.

The government puts all sorts of demands on Amtrak — maintaining service between Louisiana and Florida, for instance, or offering reduced fares for elderly or disabled passengers — not to mention giving it subsidies of about $1 billion a year, Kennedy said.

“Amtrak was created by the Government, is controlled by the Government, and operates for the Government’s benefit,” Kennedy wrote. Thus, in working with the Federal Railroad Administration to issue the “metrics and standards” for performance, “Amtrak acted as a governmental entity for purposes of the Constitution’s separation of powers provisions.”

So far, so good, Kennedy wrote for seven other members of the court. But they all agreed that was not the end of the matter.

Because the appeals court based its decision on its finding that Amtrak is a private entity, it did not address other claims by the freight industry that Amtrak’s actions were unconstitutional.

The lower court must now consider questions about how Amtrak’s board is appointed and whether there are due process concerns with giving Amtrak regulatory authority over its own industry, Kennedy wrote.

Justices Samuel A. Alito Jr. and Clarence Thomas expanded on those concerns in opinions far longer than Kennedy’s.

“This case, on its face, may seem to involve technical issues, but in discussing trains, tracks, metrics, and standards, a vital constitutional principle must not be forgotten: Liberty requires accountability,” wrote Alito, who also joined Kennedy’s opinion.

Thomas did not and said the court should have gone further.

“We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure,” Thomas wrote. “The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.”

The case is Department of Transportation v. Association of American Railroads.

Fla. death penalty case

The court said it would consider next term whether part of Florida’s process for imposing the death penalty is unconstitutional.

The court said it would take up the case of Timothy Hurst, who was convicted in the 1998 murder of his manager, Cynthia Harrison, at the Pensacola Popeye’s restaurant where he worked. Hurst stabbed and killed Harrison, left her body in a freezer, and stole more than $1,000. A jury voted 7 to 5 that Hurst should receive the death penalty, and the Florida Supreme Court upheld the decision.

Hurst’s petition to the court contains several questions, including the role of the judge vs. the jury regarding the aggravating factors that can justify a penalty of capital punishment and whether jury decisions about the death penalty must be unanimous.

Hurst also challenges whether there was adequate consideration of his claim that he is intellectually disabled.

The case is Hurst v. Florida.

Notre Dame and the ACA

The justices also told an appeals court Monday that it should reconsider the University of Notre Dame’s objection to providing contraceptive coverage under the Affordable Care Act.

The university had contended that because the adverse ruling from the appeals court came before the Supreme Court decided a similar issue in the Hobby Lobby case last summer, the remand was warranted. Without comment, the court agreed and sent the case back to the U.S. Court of Appeals for the 7th Circuit.

The case concerns a part of the ACA that requires employers to provide health insurance coverage that includes no-cost access to contraceptives. Religious organizations such as churches are exempted. And in Burwell v. Hobby Lobby, the court said the Religious Freedom Restoration Act protects some private employers from offering contraceptives that violate the owners’ religious beliefs.

The Notre Dame case and others like it concern religious-based groups, colleges and nonprofits that also object. The government offers a compromise for such groups, allowing them to opt out of providing the coverage but still letting women receive contraceptives, with the cost covered by the insurer or the government. The groups have said that still makes them complicit in providing the coverage.

While the justices told the 7th Circuit to reconsider the issue in light of the Hobby Lobby decision, that may not be much help for Notre Dame. Other courts that have ruled since Hobby Lobby have decided for the government, saying the compromise does not impose a substantial burden on the groups.