Bart Jansen USA TODAY
Privatizing air-traffic control could face legal hurdles, study shows
July 26, 2017
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  • House legislation to move air-traffic control from the Federal Aviation Administration to a non-profit corporation is subject to potential constitutional challenges, according to a non-partisan congressional study.

    But the 36-page report from the Congressional Research Service (CRS) said none of the legal hurdles was insurmountable. Interpretations of the report were hotly contested Wednesday.

    Democrats who requested the study and who oppose privatization said the report confirms the legislation would violate the Constitution and is unworkable. 

    “If enacted, this bill will face significant legal challenges that will lead to years of delays, disruption and uncertainty for the entire aviation system,” said Rep. Peter DeFazio of Oregon, the top Democrat on the Transportation and Infrastructure Committee.

    But Rep. Bill Shuster, R-Pa., the committee chairman and lead sponsor of the legislation, said the report clearly states that the legislation respects constitutional boundaries. 

    “In developing this bipartisan reform, 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. 

    Privatization is a top priority for airlines and President Trump as a way to modernize air-traffic control faster than the FAA to make flights more efficient.

    Opponents in Congress and among private pilots worry that airlines will dominate the system. Critics fear there won’t be public oversight for complaints, as there is with the FAA.

    The debate is urgent because the FAA’s current authorization expires Sept. 30. The House bill with air-traffic control overhaul awaits debate on the floor. A companion bill in the Senate doesn’t include the proposal.

    One contentious provision in the House bill deals with funding the $11 billion air-traffic control system. Only the government can impose and collect taxes. But the bill envisions eliminating the current taxes and having the corporation set and collect user fees from the industry. 

    Under the legislation, the corporation would submit a fee schedule to the secretary of transportation. The fees would go into effect unless the secretary rejected them within 45 days.But the corporation wouldn’t need approval to reduce fees. Because a reduction would benefit users like a government law or regulation, that power might face legal challenges.

    A second contentious provision deals with assuring due process of law before depriving an entity of life, liberty or property. If the corporation set fees that helped one part of the industry while hurting another, it could face legal challenges about whether everyone got a fair shake.

    The third major source of conflict over the legislation deals with the president’s appointment power and the separation of powers with the legislature.

    Under the bill, the secretary of transportation would help set up the initial 13-member board and always appoint two members.

    Yet depending on how much power they wield, board members might qualify as government officers who should be appointed by the president and confirmed by the Senate, according to the CRS report. 

    Lawmakers on each side of the debate said the report supported their position.

    “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,” DeFazio said.

    But the report also said “none of the potential constitutional issues raised by the bill seem necessarily insurmountable.”

    “The memo also clearly states it is ‘intended as an initial analysis of potential legal issues raised by Title II of the bill and does not purport to provide any definitive conclusion about the constitutionality of the legislation,’” Shuster said.