Courts Ground Delay Fixes From Congress, States

Posted April 16, 2008 at 6:30pm

Every Member of Congress has probably heard from angry constituents — or experienced personally — airlines’ shoddy treatment of passengers during lengthy ground delays.

Passengers have been stranded for hours, some without food or water, some with overflowing toilets. For nearly a decade, various lawmakers — most recently California Democratic Rep. Mike Thompson (and Sens. Barbara Boxer [D-Calif.] and Olympia Snowe [R-Maine] — have put forward a basic “Passengers Bill of Rights,” but each time the bill has stalled.

Now, a federal appeals court has barred states from passing their own minimum standards for ground delays. The result is a nationwide vacuum in consumer protection — for which the court placed the blame squarely on Congress.

Unfortunately, this decision is only the latest example of how overzealous courts are combining with Congressional gridlock to prevent solutions to a growing list of problems. The result has been widening gaps in protections for Americans’ health, safety and pocketbooks.

Spurred by horror stories from last year’s JFK ice storm, New York was the first state to enact a Passengers Bill of Rights. The law was simple: During flight delays of more than three hours, airlines would have to provide customers with light, ventilation, food, water and restrooms.

The appeals court overturned these hardly onerous requirements, saying that in passing the Airline Deregulation Act of 1978, Congress meant to free airlines from any state consumer protection laws. But the authors of the Deregulation Act had intended to keep states from dictating fares and flight plans, not to prevent states from requiring access to bathrooms for travelers stuck all day on the runway.

This ruling follows a line of Supreme Court decisions that have “pre-empted” — i.e., invalidated — all manner of state laws by twisting Congress’ words in ways lawmakers never contemplated. Often, these decisions affect areas where paralysis in Congress, inaction by federal agencies or cramped interpretations by courts have left a void states are trying to fill.

Among the casualties of this trend are workers who are denied their health or pension benefits and who often have nowhere to turn. The courts have stripped the federal Employment Retirement Income Security Act of meaningful remedies, and then invoked ERISA to pre-empt long-standing state remedies. As the late Justice Byron White said several years ago, workers and their families actually have “less protection than they enjoyed before ERISA was enacted.” And in February, the Supreme Court similarly deprived many people injured by faulty medical devices of state law protections they enjoyed for decades.

The courts also have interpreted ERISA to prevent states and cities from expanding health insurance coverage for their citizens. State efforts to keep tobacco out of the hands of minors have been repeatedly shot down — a result Justice Ruth Bader Ginsburg recently admitted was probably never intended by Congress, even though she ultimately went along with it. And a Supreme Court decision last year barred states from addressing the lack of oversight for lending practices at many state-chartered banks.

In all of these cases, the courts impute to Congress intentions that its Members never had, while saying they are just carrying out lawmakers’ commands. Congress may share some blame for drafting vaguely worded “pre-emption clauses,” which have in some cases proved all too malleable.

Lawmakers, though, have assumed — fairly, but it appears naively — that courts will strive to carry out their intent, rather than bending and stretching their words to fit judges’ own views of sound national policy.

Congress should step up to the task of providing solutions — for example, by finally passing the Passengers Bill of Rights, which is currently stalled by a fight over funding for airport improvements.

But lawmakers must also confront the pattern of judicial overreaching, of which this latest court decision is but one example.

One possible solution was floated last fall at a Senate Judiciary Committee hearing on pre-emption: an across-the-board ban on pre-empting state laws that do not conflict with specific federal statutory requirements, when Congress has not made clear its intent to do so.

Short of passing such broad legislation, other steps are feasible: carefully targeting “pre-emption clauses” in federal statutes, holding oversight hearings to spotlight judicial distortions of Congressional intent, filing friend-of-the-court briefs in key cases and scrutinizing judicial nominees to ensure that they will respect Congressional purposes and state prerogatives.

But unless Congress pushes back somehow, the courts will continue to twist its policy goals, straitjacket the states and leave constituents vulnerable.

Harper Jean Tobin is an attorney with the National Senior Citizens Law Center.