Air Traffic Spinoff Could Face Constitutional Challenges: Report

By Shaun Courtney

The proposal to spin off air traffic control to a nongovernmental entity could face constitutional challenges if the bill in its current form becomes law, according to a report by the nonpartisan Congressional Research Service.

The 21st Century Aviation, Innovation, Reform, and Reauthorization Act’s (H.R. 2997) constitutional issues revolve around allowing a private entity to perform a role that to date has been filled by the government—in this case, the Federal Aviation Administration. Questions involve the nondelegation doctrine, the Due Process Clause, and the Appointments Clause, the report says.

The report, a response to a request from congressional opponents of the air traffic proposal, says the constitutional challenges aren’t “insurmountable.”

Private or Not?

The CRS report doesn’t answer a question central to potential constitutional claims: whether the air traffic control entity envisioned in the bill is a governmental or private body.

The report calls this question a “threshold legal issue” that a court would have to determine before examining the merits of potential constitutional claims. For instance, a due process claim would only be relevant if the new entity was found to be governmental, the report says.

“It is difficult to predict how a reviewing court might ultimately view the various constitutional issues presented by Title II of the bill,” the report says.

User Fees, Board

If a court determined the new entity was private, then the prohibition on delegating governmental functions, such as fees, to nongovernmental entities would come into play.

The new entity, as described in the bill, would set its own user fee rates without approval by Congress. The fee for access to the national airspace could be perceived as the entity acting as a regulatory authority, according to the report.

“Such an arrangement would authorize a private corporation to take coercive action against other private entities, requiring them to pay a user fee determined by the Corporation,” the report says.

Another issue is the makeup of the board. If it is a governmental entity, but the members of the board aren’t selected by anyone in government and/or the president doesn’t have the ability to remove a board member, there might be valid appointments-clause questions, the report says.

Congressional Reaction

House Transportation and Infrastructure Committee ranking member Peter DeFazio (D-Ore.) and aviation subcommittee ranking member Rick Larsen (D-Wash.) asked the House Rules Committee to block the bill from a vote because of the constitutional issues. The transportation committee has already approved the bill.

“If enacted, this bill will face significant legal challenges that will lead to years of delays, disruption, and uncertainty for the entire aviation system,” DeFazio said in a July 26 statement.

The bill’s sponsor, transportation committee Chairman Bill Shuster (R-Pa.), said the CRS bolsters his proposal when it states that his bill appears to “respect the boundaries” of the constitutional doctrines the report analyzed.

“Our goal has been to ensure the safety of our system, improve its efficiency, protect our national security, and ensure the constitutionality of the proposal,” Shuster said in a July 26 statement reacting to the CRS report.

To contact the reporter on this story: Shaun Courtney in Washington at scourtney@bna.com

To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com

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