New York cannot enact the Passenger Bill of Rights

I would imagine that passengers on an airplane that's been grounded for hours on the tarmac think that their civil rights have been violated. In a legal sense, the answer is no, it's not technically a civil rights case as the courts have defined it. But sitting on the plane for more than three hours with nothing to do and nowhere to go certainly violates your sense of dignity. This is why the State of New York enacted the Passenger Bill of Rights, which required the airlines to provide passengers with "electric generation service to provide temporary power for fresh air and lights; (b) waste removal service in order to service the holding tanks for on-board restrooms; and (c) adequate food and drinking water and other refreshments."

This law may represent good public policy. But it's also illegal, according to the Second Circuit, which ruled that New York had no constitutional authority to pass this law because it conflicts with Federal law.

The case is Air Transport Association of America v. Cuomo, decided on March 25. This case covers an area of the law that few people know about: preemption. Generally speaking, under the Constitution's Supremacy Clause, if a Federal law broadly covers a certain subject matter, the states cannot legislate in that area. This case focuses on the Federal Airline Deregulation Act, which says:

Except as provided in this subsection, a State, political subdivision of a State . . . 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.

The Court of Appeals (Wesley, Livingston and Cogan) holds in this case that New York's Passenger Bill of Rights (PBR) is preempted by the Airline Deregulation Act (ADA) because the PBR is “related to a price, route, or service of an air carrier,” which the ADA already covers. Relying on a recent Supreme Court decision, Rowe v. N.H. Motor Transp. Ass’n, 128 S. Ct. 989, 998 (2008), the crux of the Second Circuit's reasoning is that "Although this Court has not yet defined “service” as it is used in the ADA, we have little difficulty concluding that requiring airlines to provide food, water, electricity, and restrooms to passengers during lengthy ground delays relates to the service of an air carrier." In other words, New York is trying to do something which only the Federal government can regulate.

This case may be on a rocket ship to the Supreme Court. Why? Because as the Second Circuit notes, most of the Courts of Appeal that "have construed 'service' [under the ADA] have held that the term refers to the provision or anticipated provision of labor from the airline to its passengers and encompasses matters such as boarding procedures, baggage handling, and food and drink — matters incidental to and distinct from the actual transportation of passengers." Some Courts of Appeal -- particularly the Ninth and Third Circuits -- disagree on this issue, the Second Circuit notes, "constru[ing] service to refer more narrowly to 'the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo, or mail,' but not to 'include an airline’s provision of in-flight beverages, personal assistance to passengers, the handling of luggage, and similar amenities.'”

When the Courts of Appeal around the country disagree on the interpretation of a Federal statute, the Supreme Court usually intervenes to iron out those differences. This case is a perfect candidate for Supreme Court review.

I wonder if there will be any public relations fallout from this case. The latest craze is to complain about airline delays when passengers have to sit on the plane for hours without any access to food or bathrooms. The states are dealing with this problem by enacting passenger's "bill of rights." I am no expert on preemption or the Airline Deregulation Act, but I wonder what the next round of delayed passengers at LaGuardia Airport would think if they found out that the airlines went to court to strike down a law that would have given them food and comfort as they sat like ducks for five hours?