By KrisAnne Hall
The Trump administration would like to privatize air traffic control, removing it from the Federal Aviation Administration (FAA). Privatization is exactly what should happen, but is that what will happen?
The question we should be asking is: If the FAA loses its role regulating air traffic, will that be equal to privatization? Unfortunately, I believe the answer will be no.
We must remember there is absolutely no authority for the federal government to regulate domestic flights. The assertion of necessity due to international flights or national security is a false assertion and does not create a domestic regulatory authority.
The commerce clause, contrary to modern thought, also does not create an authority for the federal government to regulate air traffic. James Madison, known as the Father of the Constitution, explained in an address to the House of Representatives in 1792 that the commerce clause is not a power of its own but a description of the purpose of those limited and enumerated powers expressly delegated to the federal government through the Constitution.
Madison expressly warns us that to allow Congress to turn this clause into a power, creates a completely unlimited federal government, one that the Constitution cannot tolerate:
“for if the clause in question really authorizes Congress to do whatever they think fit…, of which they are to judge, and money can be applied to it, …every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress…were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited government established by the people of America…”
The FAA should not exist as it does and it certainly has no constitutional authority to regulate our domestic air traffic. Therefore, privatizing is exactly what should happen to bring this operation in line with the Constitution.
Trump’s plan falls short of privatizing
Unfortunately, Trump’s plan is not calling for the dissolution of the FAA, so this agency will continue to exist and exert a great deal of control over the operation of any private entity taking over that role. Additionally, most airports are not really private entities. Most airports are Public-Private Partnerships (P3’s) which are a hybrid of government agency and private business. Finally, Trump’s current plan to privatize air traffic control specifically designs the new non-profit corporations as Public-Private Partnerships.
Public-private partnerships (P3’s) equate to an unholy marriage of government and private corporations. They are private corporations, operating with a private board of directors like all corporations, making money like a private corporation, but carry the power, force, and often the funding of government. Your tax dollars often fund them, the authority of government empowers them, but you have no control over them.
It is a quasi-governmental bureaucracy that makes money like a private business but is subsidized in part or in whole by the government. It frequently proposes and enforces government regulations upon the people with the authority of government, but the people elected no one holding this authority and share in none of the money collected.
Perhaps the most disturbing consequence of these P3’s is the immunity from legal consequences the corporate leadership enjoys because of their quasi-government status.
The proposed plan for the new air traffic corporations establishes that the air traffic corporations will be sustained completely by “user fees” instead of taxes. However, tax dollars will be used to establish the corporations until the fees are in place and the transition and start up are complete. And of course the federal government will also continue to control the operation of air traffic through rules and regulations by the FAA.
United Airlines controversy highlights FAA problem
The United Airlines scandal provided us with the perfect example of how these P3’s can go all wrong. The doctor who was forcefully and abusively removed from the plane for refusing to give up his seat to airline employees, was not removed from the plane by airline employees. He was removed from the plane by government employees.
Under normal legal conditions, the airline would have to go through legal contract dispute resolution with the passenger. Government employees cannot enforce a private contract agreement using the power of government unless there has been fulfillment of civil due process and a court order. How then, could government employees inject themselves into this civil dispute? Because airports are not private entities, they are this P3 public-private hybrid. This is the same relationship and power a public-private air traffic corporation would hold.
Since these air traffic corporations are being specifically designed as P3’s, it would be inaccurate to classify this proposed move as “privatization.”
The airline industry as a whole needs to be completely privatized. But that’s not what is happening here. Privatization of air traffic control does not necessarily mean the elimination of all government regulations. However, any regulation upon the air traffic industry must be handled at the State level, where the Constitution establishes the power to be reserved.
KrisAnne Hall is a former biochemist, Russian linguist for the US Army, and former prosecutor for the State of Florida. KrisAnne also practiced First Amendment Law for a prominent Florida non-profit Law firm. KrisAnne now travels the country teaching the foundational principles of Liberty and our Constitutional Republic. KrisAnne is the author of 6 books on the Constitution and Bill of Rights, she also has an internationally popular radio and television show and her books and classes have been featured on C-SPAN TV. KrisAnne can be found at www.KrisAnneHall.com
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