Impeachment Saved ICC/STB Independence

Written by Frank N. Wilner, Capitol Hill Contributing Editor
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Commerce Court Judge Robert W. Archbald, impeached and removed in 1913.

While talk of Presidential impeachment is difficult to avoid, probably few can recite how the impeachment of a federal judge in 1912 helped to secure the independence of the Interstate Commerce Commission (ICC) and its Surface Transportation Board (STB) successor.

Impeachment is provided for in Article II, Section 4 of the U.S. Constitution, although its origins stretch back to the year 1376, when the English Parliament devised a more civilized process than assassination, civil war or revolution to remove Royal ministers so as to curb the power of the King.

Having successfully waged a seven-year Revolutionary War to rid the American Colonies of an abusive, arbitrary and capricious King, delegates to our Constitutional Convention adopted an impeachment process, assuring that a President would not be a King, nor federal officials abuse Constitutional powers granted them.

Impeachment under the U.S. Constitution provides that “the President, Vice President and all civil Officers of the United States shall be removed from office on Impeachment for, and conviction of, Treason, Bribery and other high Crimes and Misdemeanors,” with the latter relating to violations of the public trust and actions contrary to the national interest.

President Andrew Johnson‘s impeachment trial begins, 1868.

In the 232 years since the Constitution was ratified in 1787, only 20 impeachments of federal officers have been instituted by the House of Representatives, among them three of Presidents, including current impeachment proceedings against President Trump. Of the two other Presidents—Andrew Johnson in 1868 and Bill Clinton in 1998—both were impeached by the House, but acquitted following trial by the Senate.

President Bill Clinton in 1998, following his acquittal by the U.S. Senate in 1998.

While impeachment proceedings were commenced against President Richard M. Nixon in 1974, he resigned from office before a House vote. And while the House also initiated impeachment proceedings against President James Buchanan in 1860, a House Select Committee determined his alleged corruption did not warrant further action.

Of the 17 non-Presidential impeachment proceedings commenced by the House, one was against Sen. William Blunt of Tennessee in 1797; another against Secretary of War William W. Belknap in 1876; and the remaining 15 against federal judges. As for Blunt, the Senate determined members of Congress are not subject to impeachment, as each chamber possesses the power to expel an elected Representative or Senator. Secretary Belknap was acquitted following trial by the Senate.

Secretary of War William W. Belknap.

Among the 15 federal judges impeached was Third Circuit Court of Appeals Judge Robert W. Archbald in 1913, who simultaneously served on a short-lived United States Commerce Court. And therein is the historically significant connection with the ICC and STB.

A Yale graduate and Scranton, Pa., native, Archbald was serving as a federal district court judge when nominated by President William Howard Taft in 1911 to both a federal appellate court judgeship and the Commerce Court—posts to which he was Senate-confirmed.

The Commerce Court was created by Congress in 1910 as an appellate body to review ICC decisions with regard to the law, but it proceeded to reopen factual questions, took new evidence and acted more as an unintended trial court.

As for the ICC, it was, in its early years, a paper tiger, lacking effective tools to administer and police the Act to Regulate Commerce (later the Interstate Commerce Act). In its 1897 annual report, the ICC said federal court oversight—well before creation of the Commerce Court—had rendered it little more than a fact-finding and reporting body, and “it is proper for Congress to understand that the people should no longer look to this ICC for protection.”

Incrementally, before creation of the Commerce Court, Congress commenced to bolster ICC investigative and enforcement tools. The 1906 Hepburn Act, for example, instructed courts to enforce ICC orders “properly made and duly served.” In 1907, the Supreme Court ruled that shippers seeking to challenge the reasonableness of a rate had first to look to the ICC and not the courts (Texas & Pacific Railway Co. vs. Abilene Cotton Oil Co.).

And while the 1910 Mann-Elkins Act afforded the ICC even greater regulatory powers, there was tucked into it creation of the Commerce Court, which unintentionally, but significantly, diluted those recently granted powers.    

William Randolph Hearst

The idea of a Commerce Court originated in 1904 with newspaper publisher and two-term Congressman William Randolph Hearst (D-N.Y.), and it gained the support of President William Howard Taft, a former federal judge and later Chief Justice of the Supreme Court.

President William Howard Taft in his days as Chief Justice of the U.S. Supreme Court.

President Taft nominated all five members of the Commerce Court, including Archbald. While Archbald’s father, James, had been a chief professional engineer for the Delaware, Lackawanna & Western Railroad, the only Commerce Court judge with a rail regulatory background was former ICC member Martin A. Knapp.

In its first year of operation, the Commerce Court reversed 20 of 27 ICC decisions, suggesting it viewed itself a second and superior ICC. In fact, the Supreme Court—to which Commerce Court decisions could be directly appealed—reversed four of the five Commerce Court decisions brought before it.

Two attempts to abolish the Commerce Court met a veto from President Taft. But nine months following the impeachment and Senate conviction of Archbald, Congress passed the 1913 Urgent Deficiencies Act, signed by President Woodrow Wilson, abolishing the Commerce Court—just three years following its problematic creation. Henceforth, ICC decisions would be reviewable by three-judge federal district courts, with further appeals going directly to the Supreme Court.  

Unlike the Commerce Court, federal district courts honored the doctrine of primary jurisdiction and did not attempt to retry cases decided by the ICC. It wasn’t until the 1946 Administrative Procedure Act that judicial review of ICC decisions was specifically limited to matters of law.

The 1975 Act to Improve Judicial Machinery vested with federal circuit courts of appeal, rather than district courts, review of ICC decisions prior to Supreme Court review. It also provided that before seeking appellate court review, petitioners must exhaust all administrative agency remedies.

Notably, it was Judge Archbald’s removal from office (the House voting 223-1 to impeach; the Senate, 68-5 to convict) that hastened the demise of the Commerce Court. Archbald was convicted in January 1913; Congress eliminated the Commerce Court in October 1913.

As for Judge Archbald, it was alleged in his articles of impeachment that he used his judgeship “at a substantial benefit to himself”—that he coerced railroads to gain favorable personal commercial outcomes; improperly communicated with railroad counsel having business before the Commerce Court; improperly solicited and accepted gifts from litigants and attorneys; and brought the federal judiciary into disrepute.

Archbald, said witnesses, sought to use his position on the Commerce Court “as a club” for personal profit, pressing the Erie Railroad to sell certain lands at below-market prices; and solicited and obtained a railroad financed vacation trip to Europe. A witness against Archbald was ICC Commissioner Balthasar Henry Meyer.

ICC Commissioner Balthasar Henry Meyer.

Upon Archbald’s Senate conviction, The New York Times curiously observed that the number “13” was fatal to him. There were 13 Senate roll call votes on his 13 articles of impeachment, the articles on which he was convicted (1, 3, 4 and 5) totaled 13, and the date of Senate conviction was Jan. 13, 1913.

Sen. George A. Smathers, circa 1951.

As for that ICC/STB independence partially traceable to Archbald and the demise of the Commerce Court, a noteworthy caveat was offered in 1958 by Senate Surface Transportation Subcommittee Chairman George A. Smathers (D-Fla.): “The ICC is independent of everybody, except the President, the Congress, the courts, the Civil Service Commission, the Bureau of the Budget, and public opinion.”

Frank N. Wilner is author of six books, including Amtrak: Past, Present, Future; Understanding the Railway Labor Act; and Railroad Mergers: History, Analysis, Insight, all published by Simmons-Boardman Books. Wilner earned undergraduate and graduate degrees in economics and labor relations from Virginia Tech. He has been assistant vice president, policy, for the Association of American Railroads; a White House appointed chief of staff at the Surface Transportation Board; and director of public relations for the United Transportation Union. He is a past president of the Association of Transportation Law Professionals. Wilner drafted the railroad section of the Heritage Foundation’s Mandate for Leadership (Volumes I and II), which were policy blueprints for the two Reagan Administrations; and was a guest columnist for the Cato Institute’s Regulation magazine.

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