Chief Justice Roberts in writing the opinion in National Federation of Independent Businesses v. Sebelius (Sebelius) upholding the Affordable Care Act, struck down the government’s argument that the health care law’s individual mandate does not violate the Commerce Clause. Since much of aviation and airport law is built on the concepts of federal pre-emption and that local regulation would violate the Commerce Clause, it is worth taking a look at the majority’s opinion, as well as Justice Ruth Bader Ginsburg’s dissent regarding the Commerce Clause to see if it will have any effect on airport and aviation law.
The Court’s decision is concerned with whether Congress can require someone previously unengaged in commerce — the individual who refuses to buy health insurance — to engage in commerce through requiring the purchase of an insurance policy. The Court said no, the “constitution grants Congress the power to ‘regulate Commerce’” not to create commerce. The laws encompassing aviation and airport law often raise Commerce Clause issues, since the primary mission of these laws is regulation of air commerce. For example, the provisions of the Airport Noise Control Act specifically forbid communities surrounding an airport from regulating noise within their communities if it “impedes the national air transportation system.” 49 U.S.C. § 47521. Likewise, the Airline Deregulation Act states that “[e]xcept as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.” 49 U.S.C. § 41713(b)(1). Except in instances where the restricting authority is the owner or operator of the airport, the restricting authority is not engaging the “economic activity” that the Court in Sebelius speaks of and therefore, might it not be argued that Congress’ restrictions on state and local governments in both ANCA and ADA are in violation of the Commerce Clause? Justice Ginsburg’s dissent certainly gives the impression that if courts follow Sebelius decision, laws such as ANCA and ADA might be considered to be outside the Congress’ power to regulate on the basis of the Commerce Clause.
Likewise, the Medicaid portion of the new health care decision could raise some trouble with some provisions of the Airport Improvement Program. In Sebelius, the Court struck down the part of the health care law that would withdraw existing Medicaid funding from states that refuse to implement a the law’s requirement to expand Medicaid to cover more people. The federal government will initially fund 100 percent of the expansion but eventually will cut the federal share to 90 percent so that states will have to pay 10 percent of the program expansion. Even though the Court acknowledged that Congress may use its Spending power under the Constitution to induce states to engage in federal programs, it found that the Medicaid provision, rather than merely inducing states to participate, essentially coerces them to do so by withdrawing all existing Medicaid funding from states that refuse to expand coverage. That, said 7 members of the Court (including Justices Kagan and Breyer), unconstitutionally commandeers the states into implementing federal law.
So what do these Medicaid provisions have to do with the Airport Improvement Program? The Airport and Airway Improvement Act directs the Federal Aviation Administration to obtain “assurances” that airport that receive federal funds will be managed and operated according to the specifications of the Federal Aviation Administration. If the airports do not comply with these assurances, which often do not impact the actual project for which the funds are obtained, they may lose all of their federal funding for existing and future projects. The threat of losing federal funds is a pretty huge one that airports simply cannot countenance. Therefore, airports comply with the assurances contained in the statute (49 U.S.C. § 47107), regulations and FAA guidance. Post-Sebelius, however, the question becomes whether that condition – comply with 49 U.S.C. § 47107 or lose AIP funds — is constitutional in the wake of the health care case.
These are meant to be preliminary observations on how Sebelius could affect aviation and airport law and these comments are not intended to complete. The intent here is simply to point out that Sebelius could matter in deciding whether the AIP provision that conditions implementation of the provisions set forth in 49 U.S.C. § 47107 on funding has constitutional problems. The new health care case could also be used by state and local government reluctant to implement the assurances required under 49 U.S.C. § 47107 to play hardball with the FAA in negotiations.