Mr. Trump’s POTUS powers & Mar-del-Lago Noise Changenot

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Trump & PBI Aircraft Noise

The issue of what President Trump could or could not do to reduce the noise generated by planes from Palm Beach International Airport (PBIA) flying over his lucrative Mar-a-Lago Club seems to reappear in the press. Perhaps, it is because the presumptive Republican nominee generates so much coverage no matter the subject or perhaps it reflects journalists’ fascination with the powers of POTUS.

There may be lots of reasons why to vote for or against him, but it seems prudent to clarify the limits of the person who occupies the Oval Office as it pertains to her/his authority as to air traffic control. [Neighbors of PBI, you do not have to vote for the presumptive Republican nominee to move the noise and those who would be hurt by a change in flight pattern, you can vote your unfettered conscience.]

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The issue of Mr. Trump’s use of executive powers was initially raised by Director of PBIA Bruce Pelly when he opined in 2011, “The solution for him is to get elected president.” That quirky statement seems to have stimulated two AP writers to further examine this issue. They reached out and obtained the following legal analysis:

“Sid McGuirk, a lawyer and an associate professor of air traffic management at Florida’s Embry-Riddle University, said Trump as president could order the FAA to direct planes to avoid Mar-a-Lago, ‘but, boy, the backlash.’

‘Would it be worth it? It would be on the front page of The New York Times and Washington Post for weeks,’ McGuirk said. ‘Of course,’ he added, ‘anytime President Trump visited Mar-a-Lago, the airspace would become a no-fly zone as it is anywhere a president visits, but those are usually temporary.’”

[emphasis added]

The TFR analysis is correct, but federal law includes two limitations which, along with the well-known Washington Post rule, would prohibit a President from ordering the FAA Administrator from changing the arrival/departure patterns over the White House South-a-Lago!

First, the FAA was created as an independent aviation safety organization in 1938 (then known as the Civil Aeronautics Board). It was eventually transferred to be part of the Department of Transportation in 1966. Even when the Administrator was assigned to reporting to the Secretary, Congress created a category of actions which the Secretary could not reverse (and thus eliminating a direct relationship with the President).

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That category is defined as “final action,” see 49 USC §1069f)(2)(A)(ii), as “the promulgation of regulations, rules, orders, circulars, bulletins, and other official publications of the Administration.” An air traffic flight pattern would qualify as such a final action. Section 106(f)(2)(D) states that the Administrator “shall not be required to coordinate, submit for approval or concurrence, or seek the advice or views of the Secretary or any other officer or employee of the Department of Transportation on any matter with respect to which the Administrator is the final authority.”

Thus, a President could not compel the Secretary to order an FAA Administrator to make such a change.

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While many consider the President to be omnipotent, the power of POTUS is constrained in many dimensions, not surprisingly. The Office of Government Ethics was established to prevent abuses of all persons within the Executive Branch. Two provisions of OGE’s regulations would prohibit Mr. Trump from doing what Mr. Pelly suggested:

  • 5 CFR §2635.606 which states:

“An employee shall be disqualified from participating personally and substantially in a particular matter that has a direct and predictable effect on the financial interests of the person by whom he is employed or with whom he has an arrangement concerning future employment..”

  • 5CFR§2635.702 which states:

“An employee shall not use his public office for his own private gain, for the endorsement of any product, service or enterprise, or for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity.”

The allegations averred in Trump v. PBIA provide the legal basis for invoking either or both of these OCE regulations. The AP article recites the damages to the value of Mar-del-Lago by the flights:

“The presumptive Republican nominee alleges in his current lawsuit that the jetliners’ roar disturbs his members, who pay $100,000 initiation fees and $14,000 annual dues. He also says the vibrations and jet exhaust damage the fragile Dorian stone, antique Spanish tiles and Cuban roof tiles used by cereal tycoon Marjorie Merriweather Post and her husband, financier E.F. Hutton, to build the 126-room, 10,000-square-foot mansion in the mid-1920s, a decade before the airport opened and three decades before the advent of passenger jets.

Trump purchased Mar-a-Lago — “The Greatest Mansion Ever Built,” according to its website — from Post’s foundation in 1985 for $10 million. He opened it as a club in 1995. The property now boasts 58 bedrooms, 33 bathrooms, a 20,000-square-foot ballroom, tennis and croquet courts and three bomb shelters.

With buildings totaling 77,000 square feet, it has an appraised market value of $20.3 million, according to county tax records. That number is artificially low primarily because Trump signed away development rights to the National Trust, lowering his property taxes. Otherwise, Mar-a-Lago’s value would easily be $60 million to $80 million, said county property appraiser Gary Nikolits.”

If Mr. Trump were to win the election and if he attempted to revise the flight pattern of PBI’s flights to his financial benefit, he would run afoul of OGE, which has both civil and criminal powers, and the Congressional limitations on what the Chief Executive may compel the Administrator to do. The Reality TV star could not invoke his famous line, “You’re Fired”, because the position has a Congressional term of 5 years, 49 USC§106(b).

 

ARTICLE: Trump could win noise battle with airport if he is president

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