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CRS Finds Air Traffic Control Privatization Plan Likely Violates U.S. Constitution

Jul 26, 2017
Press Release

CRS Finds Air Traffic Control Privatization Plan Likely Violates U.S. Constitution

Washington, D.C. –Today, Ranking Member of the House Committee on Transportation and Infrastructure Peter DeFazio (D-OR) released a 36-page constitutional analysis from the non-partisan Congressional Research Service (CRS) that found a controversial plan to privatize air traffic control likely violates the Constitution. DeFazio also sent a letter with Ranking Member of the House Subcommittee on Aviation Rick Larsen (D-WA) to the Chairman of the House Committee on Rules Pete Sessions (R-TX), requesting that H.R. 2997, the “21st Century AIRR Act”, be denied Floor consideration because of the constitutional issues facing the legislation.

“The memo released by the non-partisan Congressional Research Service is clear—as written, the plan to privatize our Nation’s air traffic control system violates the U.S. Constitution in several ways. Proponents of privatization put forth a plan that gives a private corporation, dominated by the airlines and their allies, the power to tax the public, make industry-wide regulatory changes, and initiate system changes without Federal oversight. If enacted, this bill will face significant legal challenges that will lead to years of delays, disruption, and uncertainty for the entire aviation system. I urge my colleagues to read this report and reject this risky, unconstitutional plan to give away our public airspace to a private corporation,” said DeFazio.

The memo, which analyzed Title II of H.R. 2997, the “21st Century AIRR Act”, identifies three likely or possible violations of the Constitution, including:

  • the nondelegation doctrine, which limits Congress’ authority to delegate legislative or regulatory power to private entities;
  • the Due Process Clause of the Fifth Amendment, which ensures fundamental fairness and prevents a self-interested entity from making rules that affect competitors;
  • the Appointments Clause, which preserves a separation of powers and grants appointment powers to the President.

Nondelegation Doctrine

H.R. 2997 authorizes the Corporation to assess and collect charges and fees for air traffic services provided to users.[1] The Board submits a schedule of charges and fees to the Secretary of Transportation (Secretary).[2] The Secretary solicits public comment on the proposed fee schedule and approves or disapproves the proposal within 45 days.[3] If the Secretary fails to issue a decision within 45 days, the proposal is “deemed approved”.[4] The Board is not required to submit a proposal to decrease a charge or fee to the Secretary for review.[5]

CRS identifies several elements of the bill that may be unconstitutional under the nondelegation doctrine, including the Corporation’s ability to set fees and assess penalties and interest.[6]

CRS concludes:

On balance, the ability for the Corporation to set and decrease fees without affirmative approval or oversight from a governmental entity could be viewed as an improper delegation of legislative authority to a private entity. . . . [T]he imposition of a user fee, which must be paid in order for private parties to use the national airspace, appears to constitute regulatory authority. 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.[7]

To read a full T&I summary of the CRS Memo, click here.

Due Process Clause of the Fifth Amendment

CRS found that a court could determine that air traffic services users are “forced” to pay charges and fees to the Corporation to have access to airspace and air traffic services.[8] In addition, a court could view the Corporation’s authority to determine and impose penalties and interest on users as a form of coercive “regulatory power”.[9]

CRS concludes:

If the Corporation is considered a self-interested entity, a reviewing court could hold that these grants of authority allow the Corporation to regulate air traffic users and thereby violate due process.[10]

To read a full T&I summary of the CRS Memo, click here.

Appointments Clause

Under the bill, before the transfer date of air traffic control functions of the FAA to the Corporation, the Secretary appoints most members of the Board from lists provided by various nomination panels composed of aviation stakeholders.[11] After the transfer date, the Board selects new members from lists provided by the nomination panels, except for two members selected by the Secretary.[12]

If the members of the Board exercise significant authority pursuant to Federal law, they are officers of the United States.

CRS concludes:

Assuming the Board members constitute officers, because none of the Board’s members are appointed by the President, subject to Senate confirmation, their selection is invalid if they qualify as principal officers.[13]

 

Finally, CRS notes that assuming Board members are officers, the bill’s power of removal may contradict Article II’s vestment of executive power in the President.[14]

 

The bill provides that Board members may only be removed by the Board itself for breach of fiduciary duty to the Corporation.[15] For Board members appointed by the Board, neither the President nor an executive branch officer responsible to the President is empowered to remove them. Assuming the Board members are officers, CRS concludes:

…because the bill provides that the Board itself is entrusted with the removal of Board members … neither the President nor the Secretary appear empowered to remove them. If so, completely eliminating the President’s removal discretion over executive branch officers violates Article II of the Constitution by conferring on the Board “executive power without the Executive’s oversight.”[16]

To read a full T&I summary of the CRS Memo, click here.

To read the CRS Memo, click here.

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[1] CRS H.R. 2997 Memorandum, supra note 1, at 5; H.R. 2997 § 211(a) (adding 49 U.S.C. § 90313(a)).

[2] CRS H.R. 2997 Memorandum, supra note 1, at 6; H.R. 2997 § 211(a) (adding 49 U.S.C. § 90313(b)).

[3] CRS H.R. 2997 Memorandum, supra note 1, at 6; H.R. 2997 § 211(a) (adding 49 U.S.C. § 90313(c)).

[4] CRS H.R. 2997 Memorandum, supra note 1, at 6; H.R. 2997 § 211(a) (adding 49 U.S.C. § 90313(c)(2)(B)).

[5] CRS H.R. 2997 Memorandum, supra note 1, at 6; H.R. 2997 § 211(a) (adding 49 U.S.C. § 90313(b)(3)).

[6] CRS H.R. 2997 Memorandum, supra note 1, at 17, 19.

[7] Id. at 18.

[8] Id. at 25; H.R. 2997 § 211(a) (adding 49 U.S.C. 90313(a)).

[9] CRS H.R. 2997 Memorandum, supra note 1, at 25; Ass’n of Am. R.R. v. Dep’t of Transp., 821 F.3d at 33 (quoting Dep’t of Transp, 135 S. Ct. at 1236 (Alito, J., concurring).

[10] CRS H.R. 2997 Memorandum, supra note 1, at 25 [emphasis added].

[11] Id. at 25; H.R. 2997 § 211(a) (adding 49 U.S.C. § 90306(c)(1)(B)).

[12] CRS H.R. 2997 Memorandum, supra note 1, at 25-26; H.R. 2997 § 211(a) (adding 49 U.S.C. § 90306(b)(2), (c)(2)(B)).

[13] CRS H.R. 2997 Memorandum, supra note 1, at 32. Principal officers must be appointed by the President and confirmed by the Senate. Under Edmond v. United States, principal officers are generally subject only to supervision by the President, whereas inferior officers are generally subject to supervision and control by a higher-ranking, Senate-confirmed official. Id. at 29; Edmond v. United States, 520 U.S. 651, 663 (1997). Moreover, CRS also notes that to the extent that Board members are considered inferior officers, they must be appointed by the head of a department. Under the bill, after the transfer date, most Board members are appointed by the Board itself, which is unlikely to constitute the head of a department under the Appointments Clause. CRS H.R. 2997 Memorandum, supra note 1, at 33.

[14] CRS H.R. 2997 Memorandum, supra note 1, at 34.

[15] CRS H.R. 2997 Memorandum, supra note 1, at 35; H.R. 2997 § 211(a) (adding 49 U.S.C. §§ 90307(c)(1), 90308 (a)).

[16] CRS H.R. 2997 Memorandum, supra note 1, at 35; Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 492 (2010).