Privatizing Air Traffic Control: Constitutionally Speaking

The Trump administration would like to privatize air traffic control, taking it from FAA control. That is exactly what should happen, but is that what will happen?

The question we should be asking is, if the FAA loses its maintenance of 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 FAA should not exist as it does and it certainly has no constitutional authority to regulate our air traffic. Therefore, privatizing is exactly what should happen.

Also, we need to recognize the FAA will still exist and will still be exerting a great deal of control over the operation of any private entity taking over that roll. 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, the 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 semi-governmental bureaucracy that makes money like a private business but is funded in part or in whole by the government; proposes and enforces government regulations upon the people with the power of government, but the people elected no one holding this authority and share in none of the money collected.

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. Government will also continue to control the operation of air traffic through rules and regulations by the FAA.

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 fulfilment 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 improper 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.