Democrats claim Trump’s air traffic control privatization plan is unconstitutional

Opponents of the Trump administration’s plan to privatize air traffic control are claiming that the idea may be unconstitutional, unveiling a new line of attack against the proposal even as it remains stalled in the House.

The proposal to separate air traffic control from the federal government, which has been backed by President Trump, would transfer the country’s air navigation system to a nonprofit corporation. The new entity would have the power to collect fees and be governed by a board of directors.

Democrats are now arguing such a plan will be bogged down by legal challenges, while Republicans are still trying to gather bipartisan support to address such issues before implementation.

On Wednesday, Democrats on the House Transportation and Infrastructure Committee released the findings of a Congressional Research Service (CRS) report that they say shows the privatization plan could violate the constitution in a number of ways.

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The CRS memo, which was requested by the committee’s ranking member Rep. Peter DeFazio (D-Ore.), is a legal analysis of the bill that aims to address potential constitutional questions.

But because there is little guidance from the courts about whether the corporation would be considered a private or government entity, the report concludes that it may be “difficult to predict how a reviewing court might ultimately view the various constitutional issues.” 

The analysis casts the proposal in a grey light because the memo also adds that provisions in the spinoff model “appear to respect the boundaries of the three constitutional doctrines analyzed.”

“There are a few discrete issues raised by the delegation of authority to the corporation that could be viewed as a colorable constitutional claim if challenged in court,” reads the memo. “Even so, none of the potential constitutional issues raised by the bill seem necessarily insurmountable.”

Still, Democrats are seizing on the potential constitutional issues that were raised in the memo to argue that the proposal will be bogged down in the court system if it becomes law.

“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.

One issue is that allowing a private corporation to set user fees without government approval or oversight may be an improper delegation of legislative authority. The constitution’s “nondelegation doctrine” limits Congress’s power to delegate legislative or regulatory power to private entities.

The proposal could also run into legal problems if board members are considered “principal officers,” which would require Senate confirmation, or if a court determines that users are being “forced” to pay charges and fees, which may violate due process rights.

“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,” DeFazio said.

“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,” he charged.

But Republicans on the committee emphasized that the CRS report is only an initial legal analysis, and “does not purport to provide any definitive conclusion about the constitutionality of the legislation.”

“We appreciate the desire of the ranking members, who oppose the bill, to ensure the legislation adheres to the Constitution,” said Chairman Bill Shuster (R-Pa.). “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.”

The air traffic control spinoff idea is included in legislation to reauthorize the Federal Aviation Administration (FAA), but has not yet been scheduled for floor consideration in the House. Supporters are still trying to secure more support for the contentious idea.

The FAA’s legal authority expires at the end of September, and the House is scheduled to leave town for the August recess after this week.