Unity Real Estate Company, No. 97-3234 v. Marty D. Hudson Michael H. Holland Thomas O.S. Rand Elliott A. Segal Carlton R. Sickles Gail R. Wilensky William P. Hopgood Trustees of the United Mine Workers of America Combined Benefit Fund Thomas F. Connors Robert Wallace Trustees of the 1992 United Mine Workers of America Benefit Plan United States of America (Intervenor in District Court), Ltv Corporation (Ltv), Nacco Industries, Inc. (Nacco) Amicus Curiae. Barnes and Tucker Company, No. 97-3236 v. Marty D. Hudson, Trustee of the United Mine Workers of America Combined Benefit Fund and Trustee of the 1992 United Mine Workers of America Benefit Plan Michael H. Holland, Trustee of the United Mine Workers of America Combined Benefit Fund and Trustee of the 1992 United Mine Workers of America Benefit Plan Thomas O.S. Rand, Trustee of the United Mine Workers of America Combined Benefit Fund Elliott A. Segal, Trustee of the United Mine Workers of America Combined Benefit Fund Carlton R. Sickles, Trustee of the United Mine Workers of America Combined Benefit Fund Gail R. Wilensky, Trustee of the United Mine Workers of America Combined Benefit Fund William P. Hopgood, Trustee of the United Mine Workers of America Combined Benefit Fund Thomas F. Connors, Trustee of the 1992 United Mine Workers of America Benefit Plan Robert G. Wallace, Trustee of the 1992 United Mine Workers of America Benefit Plan United States of America (Intervenor in the District Court), Ltv Corporation (Ltv), Nacco Industries, Inc. (Nacco) Amicus Curiae

In Eastern Enterprises v. Apfel, 524 U.S. 498, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998), the Supreme Court held unconstitutional the portion of the 1992 Coal Industry Retiree Health Benefit Act (Coal Act), 26 U.S.C. §§ 9701-9722 (1994 & Supp. II), that required former coal mine operators to pay for health benefits for retired miners and their dependents, as applied to a former operator who last signed a coal industry benefit agreement in 1964. In this case, we are asked to apply Eastern to former coal mine operators who were signatories to coal industry agreements in 1978 and thereafter. Eastern was decided by a sharply divided Court, and the parties disagree as to what, if any, principles commanded a majority.

The plaintiffs, Unity Real Estate ("Unity") and Barnes & Tucker Co. ("B & T"), challenge the Coal Act as applied to them as both a violation of substantive due process and an unconstitutional uncompensated taking. Although it is an exceedingly close question, and we are highly sympathetic to plaintiffs' unfortunate situation, in which retroactively imposed liability operates to bind them to commitments they had thought satisfied when they left the coal industry, we conclude that the Act is constitutional as applied to these plaintiffs. Accordingly, their recourse must be to Congress rather than to the courts.

First, we conclude, albeit with substantial hesitation, that the Coal Act does not violate due process. Our due process inquiry proceeds in two parts. We acknowledge at the outset that there is a gap between what the contracts between the union and the mining companies required and what the Coal Act now mandates from those former mining companies. Because this is a substantive due process challenge, we accord deference to Congress's judgments, based on the report and recommendations of the Coal Commission. While reasonable minds could differ on the point, we are satisfied that the agreements signed by the plaintiffs in 1978 and thereafter promised that miners and their dependents would receive lifetime benefits from the benefit funds, and that, at all events, these agreements informed reasonable expectations that the benefits would continue for life. Similarly, we conclude that it was reasonable for Congress to conclude that the plaintiffs' withdrawal from the funds contributed to the funds' financial instability, though the agreements themselves permitted withdrawal. The history of coal mining in this country also supports Congress's decision to step in when the funds that provided health benefits to retired miners began to falter.

The question we must then answer is whether those congressional judgments provide enough of a rationale for closing the gap between the contracts and the needs of the benefit funds through the mechanism of the Coal Act. Consistent with our due process jurisprudence, we ask whether the Coal Act was a rational response to the problems Congress identified, taking into account the Act's retroactivity, which is highly disfavored in our legal culture. In light of Congress's findings and in the context of extensive government regulation of the coal industry, we hold that it was not fundamentally unfair or unjust for Congress to conclude that the former coal companies should be responsible for paying for such benefits, even if they were no longer contractually obligated to pay into the benefit funds. The retroactive scope of this enactment, especially as applied to plaintiff Unity (eleven years), approaches the edge of permissible legislative action, but we cannot say that the law is beyond the legislative power.

We also decline to find a compensable taking on the ground that the Coal Act will put the plaintiffs out of business, because it is contrary to the reasoning of a majority of the Supreme Court in Eastern. Moreover, granting relief whenever a plaintiff could credibly argue that it would be driven out of business by a regulation would create major difficulties in evaluating the constitutionality of much modern legislation. We therefore decline to construe this regulatory burden as a "categorical taking" analogous to the total destruction of the value of a specific piece of real property.

The history behind the Coal Act has often been discussed in the pages of the federal reporters. See, e.g., Eastern, 118 S.Ct. at 2137-42 (plurality). Briefly, the relevant facts are as follows: The coal industry has witnessed a series of particularly vitriolic labor disputes over the past half-century. In 1946, motivated principally by miners' demands for decent health and retirement benefits, the United Mine Workers of America ("UMWA") called a nationwide strike. To forestall industrial paralysis, President Truman nationalized the coal mines. Following the execution of what came to be known as the Krug-Lewis Agreement, the government relinquished control of the mines. The UMWA and the Bituminous Coal Operators' Association ("BCOA"), a multiemployer group of coal producers, then executed the first National Bituminous Coal Wage Agreement ("NBCWA"). The 1947 NBCWA specified terms and conditions of employment in the mines and, among other things, extended the Krug-Lewis Agreement by providing health and pension benefits to miners.

A new NBCWA signed in 1950 provided that, in exchange for union concessions, the BCOA would create a welfare and retirement fund financed by a per ton levy on coal mined by signatory coal producers. The 1950 Fund was designed to receive employer contributions and to use the funds to provide health benefits to current and retired miners (and, in certain cases, to family members). Several more NBCWAs were signed over the next two decades. None of them altered this basic benefits format, although beginning in 1971 the UMWA and the BCOA were given power over the levels of benefits provided under the 1950 Fund, removing discretion formerly vested in the Trustees of the Fund. See In re Chateaugay Corp., 53 F.3d 478, 482 (2d Cir.1995).

In 1974, demographic changes that had increased the cost of benefits, along with the passage of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., led to a restructuring of the 1950 Fund. In its place, the 1974 NBCWA established four separate multiemployer plans, two covering pension benefits and two dealing with nonpension benefits. The nonpension entities were the 1950 Benefit Plan, which provided health benefits to coal workers who retired before 1976, and the 1974 Benefit Plan, which covered those who retired on or after January 1, 1976. The 1974 NBCWA explicitly guaranteed that miners and their dependents would retain their health services cards--which gave them access to Plan health benefits--"for life." No such express warranty had appeared in any earlier agreement. We will discuss these changes in more detail below. See infra Part III.

In response to continued labor unrest and unresolved concerns over benefits, the 1978 NBCWA incorporated a new provision assuring health care for "orphaned" miners (that is, miners whose employers had abandoned either the coal industry or the UMWA), together with complementary "guarantee" and "evergreen" provisions. The "guarantee" clause obligated signatories to make sufficient contributions to maintain benefits at the negotiated levels during the period of agreement, whereas before there had been no promise to maintain any particular benefit level. The "evergreen" clause required signatories who continued to mine coal to continue making benefit contributions for as long as such contributions were required by future NBCWAs, regardless of whether a particular operator actually signed those subsequent NBCWAs. Additionally, the 1978 NBCWA for the first time defined specific health benefits that would be covered, a practice that continued in later agreements. Finally, for miners leaving covered service on or after January 1, 1976, primary responsibility for retiree health care coverage was shifted from the UMWA multiemployer system to individual coal companies, with the 1974 Plan retained as an "orphan" plan for retirees whose former employers went out of business.

The economic problems that prompted the remedial measures in the 1974 and 1978 NBCWAs continued to plague the industry. In particular, the cost of health care rose steeply throughout the 1980s, the number of orphaned miners increased dramatically as more and more employers left the industry, and an aging population swelled the retired miners' ranks. By 1990, contributions from a shrinking number of coal producers proved insufficient to fund the four benefit plans, and those plans were awash in red ink.

The UMWA struck the Pittston Coal Company for nearly 11 months in 1989-90. The Secretary of Labor intervened, brokered a rapprochement, and, as part of the negotiated settlement, set up a commission to study the industry's problems and recommend ways of rejuvenating the benefit plans. The Coal Commission issued its report in late 1990. Congress's response to the commission's suggestions took the form of the Coal Act. The Act folded the 1950 and 1974 Plans into a single UMWA-sponsored entity (the Combined Fund) and wove an elaborate tapestry designed to ensure that all retirees who were eligible to receive health benefits from the preexisting Plans would obtain them from the Combined Fund. The Act also created the 1992 Plan, which was designed to provide benefits to eligible retirees and their dependents who were not beneficiaries of the Combined Fund and who were not receiving health care coverage directly from former employers.

The linchpin of the statutory scheme is contained in section 9706 of the Coal Act, which directs the assignment by the Social Security Commissioner of every eligible beneficiary to a "signatory operator" who is still "in business." The signatory operator ("SO") must have signed at least one NBCWA and must pay premiums to the Combined Fund sufficient to defray the estimated annualized health care costs for its assigned beneficiaries. See 26 U.S.C. § 9704.1 A retired miner is assigned first, if possible, to the SO that both signed the 1978 (or any subsequent) NBCWA and also employed him for at least two years more recently than any other SO. See id. § 9706(a)(1). If no SO fits that description, the retired miner is assigned to the 1978 (or any subsequent) SO that employed him most recently for any length of time. See id. § 9706(a)(2). If the retired miner never worked for a 1978 or subsequent SO that is still in business, he is assigned to the SO that employed him for the longest period of time. See id. § 9706(a)(3).

Unity is a corporation owned by members of the Jamison family. Unity is covered by the Coal Act as a "related person" to several companies--formed by members of the Jamison family--that were ultimately absorbed into Unity. One, South Union-PA, had been mining coal since 1923 and signed the 1947 NBCWA and amendments thereto through 1961. South Union-WVA, which took up mining when South Union-PA left off, signed the 1974, 1978, and 1981 NBCWAs, although a bankruptcy court granted it leave to reject the 1981 NBCWA in 1981. Yet another Jamison company, Stewart Coal & Coke Co., paid into the UMWA benefit funds from 1949 to 1958; when it ceased operations, it stopped paying into the benefit funds, but its former employees continued to receive benefits from the Funds. Other related companies signed NBCWAs and paid into UMWA benefit funds at various times from the 1960s through the 1970s.2

Unity currently owns a small commercial building and parking lot in Greensburg, Pennsylvania and employs two individuals, a corporate officer who earns $7,000 per year and a janitor. Its annual gross revenues are approximately $50,000 and its net worth is approximately $85,000. Unity was assigned 74 beneficiaries of the Combined Fund and owed the Fund, as of September 30, 1995, over $440,000 in unpaid premiums. In addition, Unity was assigned 2 beneficiaries of the 1992 Plan and, as of January 31, 1996, owed that Fund over $18,000. The assignment was based upon Unity's prior employment of 63 miners, who had worked for Unity and its related companies, on average, for ten years.3 Unity represents that its Coal Act liabilities are over six times its total assets and that, if forced to pay, it will be bankrupted. These representations are not disputed by the Trustees.

B & T was assigned 1544 Combined Fund beneficiaries and some twenty 1992 Plan beneficiaries. B & T had been, from 1905 on, engaged in large scale coal production until closing its last mining operation in 1986. It terminated an agreement to manage a mine effective January 1, 1987. At the peak of its coal mining operations from the 1970s to the 1980s, B & T employed approximately 1100 UMWA-represented miners. B & T was a party to the 1971, 1974, 1978, and 1981 NBCWAs through its membership in the coal operators' association. Although it withdrew from the association prior to the 1984 NBCWA, it later agreed to be bound by that NBCWA on a "me-too" basis, adhering to the Agreement's requirements. Its participation in the NBCWA terminated in 1988. At that time, B & T discontinued its individual employer plan and its retirees were left to be covered by the 1974 Benefit Plan (the "orphan" plan).

B & T's activities are currently confined to leasing its coal reserves, paying workers' compensation and black lung claims, and treating acid mine drainage from its closed mines. B & T claims that if it is forced to continue paying its Coal Act liabilities, all of its assets will be consumed in less than two years, and this is not in dispute.

The plaintiffs challenge the constitutionality of the Coal Act as it applies to them (§ 9706(a)(1) & (2)). Both moved for preliminary injunctions to prevent the Trustees of the funds to which the plaintiffs are required to pay under the Coal Act from enforcing the Coal Act against them during the pendency of these cases. B & T withdrew its motion for a preliminary injunction, and the District Court granted Unity's motion for a preliminary injunction. The court rejected Unity's Due Process Clause argument but granted the requested interim relief on Takings Clause grounds. See Unity Real Estate Co. v. Hudson, 889 F.Supp. 818 (W.D.Pa.1995). All parties moved for summary judgment. The District Court, reconsidering its views of the merits, granted the defendants' motions for summary judgment and denied Unity's and B & T's motions for summary judgment. Unity and B & T appeal.

Eastern Enterprises was involved in coal mining until 1965, and signed every NBCWA from 1947 until 1964. It was assigned liability for over 1000 miners, based on Eastern's status as the pre-1978 signatory for whom the miners had worked for the longest period of time; its total liability was estimated to be between $50 and $100 million. Eastern sued, claiming that the Coal Act was unconstitutional.

Four Justices concluded that the Act was a compensable taking as to Eastern. In practical terms, this meant that the Act was unconstitutional: Compensation for the taking would be the return of sums required to be paid by the Act. Although the law did not work a physical invasion, the plurality noted that economic regulation can constitute a taking. See Eastern, 118 S.Ct. at 2146 (plurality). The plurality looked to three factors of particular significance in determining whether a taking had occurred: the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the retroactive character of the government action. See id. (plurality).

The plurality examined several previous cases to set the stage for its analysis. It looked to Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976), where the Court upheld provisions of the Black Lung Benefits Act, which required coal operators to compensate miners and their survivors for death or disability due to mining-related black lung disease. The Eastern plurality explained that Usery upheld that law because, even though "stricter limits may apply to Congress' authority when legislation operates in a retroactive manner," holding the companies liable for black lung benefits was justified as a rational measure to spread the costs of black lung to companies that profited from the miners' labor. Eastern, 118 S.Ct. at 2147 (plurality).

Next, the plurality considered Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984), where the Court upheld the Multiemployer Pension Plan Amendments Act (MPPAA), which was enacted to supplement ERISA. ERISA had created the Pension Benefit Guaranty Corporation to exercise discretionary authority to pay benefits when a multiemployer pension plan terminated. The Corporation also had authority to require employers who had contributed to the plan during the five years before its termination to pay for an amount proportional to their share of contributions to the plan during that five-year period. As ERISA's effective date approached, many multiemployer pension plans were in a precarious position, and so Congress enacted the MPPAA, which imposed a payment obligation upon any employer withdrawing from such plans. The obligation depended on the employer's share of the plan's unfunded vested benefits.

The MPPAA applied retroactively to withdrawals within the five months preceding its enactment. The Eastern plurality explained that the Court upheld the MPPAA because retroactive liability prevented employers from taking advantage of a lengthy legislative process by withdrawing before Congress revised the law. The retroactivity in Gray, the Eastern plurality emphasized, was short, and limited to the needs generated by the delays inherent in the legislative process. See Eastern, 118 S.Ct. at 2147 (plurality).

The plurality then reviewed Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 106 S.Ct. 1018, 89 L.Ed.2d 166 (1986), where the MPPAA was again at issue, this time as the subject of a takings challenge. The Eastern Court explained that Connolly upheld the law despite the employers' expectations that they would not have to pay, because "legislation is not unlawful solely because it upsets otherwise settled expectations." Eastern, 118 S.Ct. at 2148 (plurality). Even though the employers in Connolly had contractual agreements expressly limiting their contributions to the pension plan, the Court held that their express contracts could not impair Congress's authority. See Connolly, 475 U.S. at 223-24, 106 S.Ct. 1018. The Connolly Court noted that the MPPAA did not work a physical invasion. Although the economic impact of the law was substantial, the amount was directly related to the previous relationship between the employer and its pension plan, and therefore the economic impact factor did not establish that a taking had occurred. See id. at 225, 106 S.Ct. 1018. Moreover, there was no interference with reasonable investment-backed expectations, because at the time the MPPAA was enacted, prudent employers had notice that pension plans were regulated and that withdrawal might trigger additional financial obligations. See id. at 227, 106 S.Ct. 1018.

The third time was not the charm for the MPPAA's challengers in Concrete Pipe & Products, Inc. v. Construction Laborers Pension Trust, 508 U.S. 602, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993). In that case, the employer focused on the fact that its contractual commitment to its pension plan did not impose withdrawal liability. The Court rejected the claim that the contract made a difference and reiterated its holding that there was no taking as long as an employer's liability would generally not be " 'out of proportion to its experience with the plan.' " Id. at 645, 113 S.Ct. 2264 (quoting Connolly, 475 U.S. at 226, 106 S.Ct. 1018). Although the employer's liability under the MPPAA exceeded ERISA's original cap on withdrawal liability, the Court found "no reasonable basis to expect that [ERISA's] legal ceiling would never be lifted." Id. at 646, 113 S.Ct. 2264. The employer voluntarily negotiated a plan within ERISA's scope, making its burden under the MPPAA neither unfair nor unjust. See id. at 646-47, 113 S.Ct. 2264.

The Eastern plurality summarized this line of cases as follows:

Our opinions in Turner Elkhorn, Connolly, and Concrete Pipe [ ] make clear that Congress has considerable leeway to fashion economic legislation, including the power to affect contractual commitments between private parties. Congress also may impose retroactive liability to some degree, particularly where it is "confined to short and limited periods required by the practicalities of producing national legislation." Our decisions, however, have left open the possibility that legislation might be unconstitutional if it imposes severe retroactive liability on a limited class of parties that could not have anticipated the liability, and the extent of that liability is substantially disproportionate to the parties' experience.

Eastern, 118 S.Ct. at 2149 (plurality) (citation omitted). The plurality held that the Coal Act, as applied to Eastern, presented such an extreme case.

On the economic impact factor of the takings test, the plurality found "no doubt that the Coal Act has forced a considerable financial burden upon Eastern," between $50 and $100 million. Id. (plurality). The plurality referred to previous cases requiring that liability be proportional to a party's experience with the object of the challenged legislation. In the pension plan cases, the parties had voluntarily negotiated and maintained pension plans, at least for a while, and consequently their statutorily imposed liability was linked to their own conduct. See id. 118 S.Ct. at 2149-50 (plurality). Eastern did not participate in the negotiations for the 1974 or subsequent NBCWAs, nor did it agree to make contributions thereunder. "[The 1974, 1978, and subsequent agreements] first suggest an industry commitment to the funding of lifetime health benefits for both retirees and their family members." Id. at 2150 (plurality).

The plurality then concluded that the Coal Act substantially interfered with Eastern's reasonable investment-backed expectations. See id. at 2151 (plurality). It reasoned that retroactivity is generally disfavored in the law, and that the length of the period of retroactivity and the extent of Eastern's liability raised substantial questions of fairness. See id. at 2152 (plurality). Finally, the plurality found the nature of the government action to be quite unusual, because the liability imposed was substantial, based on conduct thirty to fifty years in the past, and unrelated to any commitment Eastern made or injury it caused. See id. at 2153 (plurality).

The plurality declined to reach Eastern's substantive due process argument, although it noted that takings and due process analyses are often correlated. See id. (plurality); see also Connolly, 475 U.S. at 223, 106 S.Ct. 1018. The plurality reiterated the Court's past concerns about using the "vague contours" of the due process clause to nullify laws. Eastern, 118 S.Ct. at 2153 (plurality) (citation omitted). Justice Thomas agreed with the plurality's Takings Clause analysis but wrote separately to reaffirm his belief that the Ex Post Facto Clause would also apply to Eastern's predicament. See id. at 2154 (Thomas, J., concurring).

Justice Kennedy concurred in the judgment, providing the critical fifth vote to strike the law down as applied to Eastern. He found takings analysis inapplicable: "The Coal Act imposes a staggering financial burden on the petitioner ... but it regulates the former mine owner without regard to property. It does not operate upon or alter an identified property interest, and it is not applicable to or measured by a property interest." Id. at 2154 (Kennedy, J., concurring). Instead, he emphasized the law's distaste for retroactivity and found that the Coal Act's extreme retroactivity violated due process as applied to Eastern. See id. at 2158-59 (Kennedy, J., concurring). When the Court upheld retroactive legislation in the past, he noted, the statutes at issue were "remedial, designed to impose an actual, measurable cost of [the employer's] business which the employer had been able to avoid in the past." Id. at 2159 (Kennedy, J., concurring) (citation and internal quotation marks omitted) (alteration in original). Justice Kennedy concluded that "[s]tatutes may be invalidated on due process grounds only under the most egregious of circumstances. This case represents one of the rare instances in which even such a permissive standard has been violated." Id. (Kennedy, J., concurring).

Four Justices dissented, finding neither a taking nor a due process violation.

B. Drawing Instruction from Eastern: Does It Control This Case?

The splintered nature of the Court makes it difficult to distill a guiding principle from Eastern. There are five votes against the plurality's Takings Clause analysis. However, Justice Kennedy's substantive due process reasoning is not a "narrower" ground that we might take to constitute the controlling holding. There is a fundamental conceptual difference between a takings claim and a substantive due process claim. If the government pays just compensation, it may take property for public use under the Takings Clause. Due process protections, by contrast, define what the government may not require of a private party at all. It is the difference between a liability rule and a property rule. See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L.Rev. 1089 (1972); Thomas W. Merrill, The Economics of Public Use, 72 Cornell L.Rev. 61, 66 (1986). To be sure, in this case the result of the two claims would be the same because the only potential taking is the imposition of a monetary obligation, but neither constitutional ground is a more limited version of the other.

Amici, other former coal companies, submit that the holding of Eastern is that employee benefits funding legislation is unconstitutional if it imposes substantial retroactive liability on selected employers, and if that liability is unrelated to injuries caused or promises made by those employers. While this may be reasonably accurate in a general sense, it does not provide guidance for determining how substantial is too substantial or how tight the fit between parties' past acts and the liability imposed on them must be. Nor does it help define an intersection between substantive due process and takings law, as the word "unconstitutional" is here being used to cover, if not a multitude of sins, at least two.

Eastern, therefore, mandates judgment for the plaintiffs only if they stand in a substantially identical position to Eastern Enterprises with respect to both the plurality and Justice Kennedy's concurrence. See Association of Bituminous Contractors, Inc. v. Apfel, 156 F.3d 1246, 1254-55 (D.C.Cir.1998) [ABC, Inc.] (reaching the same conclusion about Eastern ). In addition, we are bound to follow the five-four vote against the takings claim in Eastern, although we will consider plaintiffs' "categorical takings" claim, not presented in Eastern, in greater detail infra Part IV.

Because the plaintiffs signed NBCWAs in 1974 and thereafter, they are factually distinguishable from Eastern Enterprises. Language in the plurality and the concurrence suggesting that expectations fundamentally changed after 1974 supports our conclusion. See Eastern, 118 S.Ct. at 2150 (plurality) ("[The 1974, 1978, and subsequent agreements] first suggest an industry commitment to the funding of lifetime health benefits for both retirees and their family members."); id. at 2159 (Kennedy, J., concurring); see also id. at 2161 (Stevens, J., dissenting) (stating that the miners' and operators' "implicit agreement was made explicit in 1974"). Although we recognize that the Court was not presented with argument focused on post-1978 signatories and thus may not have had before it all the available evidence about later contracts, that very distinction compels the conclusion that Eastern is not on all fours with the case before us.

To the extent that Eastern embodies principles capable of broader application, we believe that due process analysis encompasses the relevant concerns. We must identify a set of calipers with which to evaluate the challenged provisions of the Coal Act, and we believe that the relevant measurement is the extent of the gap between the coal companies' contractual promises to the Funds and the requirements of the Coal Act. In making our decision, we first give deference to Congress's determination of the problem to be addressed, and then ask whether Congress's solution comports with fundamental principles of due process.

The standard of review when a substantive due process violation is alleged is forgiving; it bars only arbitrary and irrational congressional action. At the same time, our legal system has a long-standing and well-justified distaste for retroactive laws, because of their heightened potential for unfairness. See, e.g., Eastern, 118 S.Ct. at 2158 (Kennedy, J., concurring) (discussing our "singular distrust of retroactive statutes"); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988).

The situation is not unlike that faced in Turner Broadcasting System, Inc. v. Federal Communications Commission, 520 U.S. 180, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997). In Turner, a case involving a First Amendment challenge to Congress's regulation of cable systems, the Court applied intermediate scrutiny and required substantial evidence justifying Congress's conclusion that regulation was necessary, but nonetheless emphasized the importance of deference to Congress:

Our sole obligation is "to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence." ... [S]ubstantiality is to be measured in this context by a standard more deferential than we accord to judgments of an administrative agency. We owe Congress' findings deference in part because the institution "is far better equipped than the judiciary to 'amass and evaluate the vast amounts of data' bearing upon" legislative questions. This principle has special significance in cases, like this one, involving