As sequestration goes into effect, Americans expect the administration to implement it in a way that is the least disruptive to the public. Unfortunately, the Federal Aviation Administration (FAA) has chosen to do quite the opposite, opting for the most careless implementation possible. Rather than cutting spending elsewhere, making decisions based on air traffic patterns, or planning with transparency and input from the airlines, the FAA has chosen blunt, across-the-board furloughs of air traffic controllers – ignoring the flexibility it has to avoid them and the resulting travel delays. The airline industry has called this decision, “unjust, unnecessary and completely irresponsible.”
The administration claims its hands are tied. But this week, two memos from leading legal minds – top litigators in past Republican and Democratic administrations – come to a different conclusion. In memos to a major airline, Paul Clement, Solicitor General for President George W. Bush, and Seth Waxman, Solicitor General for President Bill Clinton, both argue that the FAA has options to limit or avoid these delays. They determine that:
- the FAA does, in fact, have a level of flexibility in applying the sequestration cuts; and
- under the FAA Modernization and Reform Act passed last year, the FAA has “transfer authority” to mitigate the cuts imposed by sequestration.
The FAA’s decision to ignore these authorities – and its unwillingness to justify its approach – has troubled members of both parties. In a bipartisan letter to the administration, the Chairman and Ranking Member of the Senate Commerce Committee, Sen. Jay Rockefeller (D-WV) and Sen. John Thune (R-SD), “reiterated their frustration,” asking a number of questions, including:
- Have you done a comprehensive analysis of the projected delays and/or cancellations throughout the system as a result of the air traffic controller furloughs?;
- What measures have you taken to…work with the airlines to minimize the impact of the air traffic controller furloughs prior to your decisions regarding sequester implementation?; and
- Prior to your decision…, did you pursue any furlough plan alternatives that would have mitigated the impact on air traffic operations?
The White House says these Obama flight delays are here to stay unless the president gets yet another round of tax increases. It’s a cynical attempt to inconvenience Americans in order to achieve the president’s political goals. With the legal analysis working against him, it’s also a decision, like the cancellation of White House tours, that the president will ultimately have to answer for.