Durbin’s Letter Does Not Amend 49 USC § 47134 and Should Not Influence the Midway Airport Privatization Decision

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ARTICLE: Durbin throws wrench in Midway deal

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Congress, that is both the House of Representatives and the Senate, enacted 49 USC § 47134 in 1996. The requirements of that statute were debated and that list is ALL that the Administrator may use to decide whether to exercise the powers authorized by that section.

The senior Senator from Illinois seems to believe that the previous enactment and as his right as a Member of the Majority of the Senate, he attempted to revise the language. He believes that the seller/lessor of an airport must repay the federal funds invested in the facility as a predicate for the airport’s privatization. Evidentially his view of the need for this amendment did not receive the requisite votes.

Now, the former Chief of Staff of the White House, the Mayor of the City of Chicago, has proposed to subject the Midway Airport to the exacting § 47134 process in an effort to move this asset into the hands of a private sector organization. The motive for this proposed transaction may be characterized either as maximizing the economic return to the City or cynically as providing the city with a stream of earnings.

Senator Durbin has written the Department of Transportation (see the above letter) in spite of the fact that the approval/disapproval is within the authority of the FAA Administrator. The Senator has the Secretary (who just resigned) evaluate the request for privatization against a non-statutory criteria of whether the City has repaid the AIP investment of $378 million. The letter articulates cogent policy arguments why repayment should be a consideration in ALL § 47134 reviews.

The Secretary – or more appropriately the Administrator – may agree with the Senator’s points, but neither of them has a vote on the merits of the statute’s criteria. In fact, as a 1969 graduate of the Georgetown University Law Center, the Senate Majority Whip has to know that if the FAA’s decision denying the § 47134 approval was based on the Illinois legislator’s preferred, but unenacted, criteria, a Court of Appeals could easily reverse the decision.

Senator Durbin, the right forum for advancing your contention is Capitol Hill, not 800 Independence Ave!

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