Daily Report for Executives provides in-depth coverage of unfolding legislative, regulatory, and judicial news from the nation’s capital, the states, and around the world. This daily news service...
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.”
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.
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.
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 email@example.com
To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)