It has come to our attention that a legal colleague has authored a blog analogizing the United States Supreme Court’s recent decision upholding the Obama Administration’s health care legislation (“Obamacare”), National Federation of Independent Business, et al. v. Sebelius, et al., 567 U.S. ___ (2012), to the Federal statutes preempting state and local control of the regulation of aircraft operations and their free and open access to airports. The blog attempts to make the case that, because the Court ruled that the Commerce Clause of the United States Constitution does not justify requiring all uninsured Americans to purchase health insurance, so the Commerce Clause somehow cannot justify exclusive Federal regulation of the “safety of navigable airspace,” 49 U.S.C. § 40103(a), and airlines “rates, routes and charges,” 49 U.S.C. § 41713(b)(1). This analysis not only manifestly misapprehends the clear distinction between the two cases, but can also send a damaging message to those who justifiably seek legally supportable means of controlling airport impacts.
Specifically, the argument that the decision on Obamacare somehow lends support to local regulation of airports turns the Sebelius decision on its head. In the Obamacare decision, the Court held, regarding the universal mandate to purchase insurance, that the Commerce Clause could not be used as a pretext to force the uninsured, who have not chosen to voluntarily engage in interstate commerce through the purchase of health insurance, to engage in commerce involuntarily by mandating such a purchase.
In the context of Federal regulation of airports, however, the Commerce Clause has been applied to ensure that voluntary entrants into interstate commerce, i.e., the airlines and passengers, will not be obstructed by a web of disparate local regulations. In upholding this application of the Commerce Clause to voluntary entrants into the air transportation system, as it has done consistently since the passage of the Federal Aviation Act in 1958, 49 U.S.C. § 40101, et seq., as amended, the Court held:
“The Federal Aviation Act requires a delicate balance between safety and efficiency, [cite omitted], and the protection of persons on the ground. . . The interdependence of these factors requires a uniform and exclusive system of federal regulation if the congressional objectives underlying the Federal Aviation Act are to be fulfilled.”
City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 638-639 (1973).
In fact, the airline/airport industry, which developed for the express purpose of facilitating business between states, and the United States and other countries (witness the impact of Lindbergh’s transatlantic flight in 1927), is the quintessential “voluntary” participant that our Founding Fathers authored the Commerce Clause to protect.
In short, it is important to correct any false impression about the applicability of the Sebelius decision in the airline context, in order to save those readers looking for solutions to the widespread problem of airport impacts from wasting resources attempting to bring the national aviation system under local control. Such time could be far better spent on the employment of other more effective strategies based on environmental and other statutes for working toward a better balance of commerce and its impacts.