Passenger Rights Not Cleared For Take-Off

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

The signs are all evident. Sooner rather than later, there will be a beloved Bill of Rights that coerces airlines into treating passengers with dignity.

It won't exactly be loaded with many Madison, Jefferson and Hamilton moments, but it probably will ensure that you don't get locked onto a plane for ten hours with the toilets overflowing, the water supply low, and fresh air dwindling or gone.

It's just around the corner - but not quite yet. A federal appeals court Wednesday appeared poised to strike down New York's Airline Passenger Bill of Rights on the grounds that any regulation of the airline industry must come from the federal government. In the legislative world they call this doctrine "preemption" - state efforts must necessarily give way to federal fiat.

In the world of the law they call it "a great big stone pillar for judges to hide behind when they make an unpopular ruling."

And, indeed, the looming decision from the 2nd U.S. Circuit Court of Appeals would be enormously unpopular if (and when) it goes against consumers, not just with airline passengers in the Empire State but with passengers in other states contemplating similar legislation.

A ruling against New York's law would stymie attempts by other states to help other passengers gain more legal leverage against the people who have maneuvered millions of unhappy Americans into a remorselessly unpleasant travel program.

In Pennsylvania, for example, a Bill of Rights similar to the one created in New York remains on legislative hold. And even if the Pennsylvania bill made it into law, it would face the same preemption hurdle that the New York statute faces.

The same goes for an effort initiated just last month in California. A legislator there explicitly modeled his legislation after New York's law. Of course, if every state with a legitimate gripe against the airlines enacted a statute there would be even more chaos than there already is - which brings us back to preemption and a federal effort at bringing the airlines to heel.

So can the Congress finally break the yoke of the airline lobby (just this once!) by protecting the rest of us from the appalling state of air travel these days?

Don't bet on it, at least not this term.

Even during an election year - when practically every single voter wants something done to improve air travel - there appears to be no great desire to enact legislation that would begin to address the complaints of frequent fliers.

A federal "Bill of Rights" for passengers remains on the legislative back-burner even as the Congress investigates the track marks on Roger Clemens' butt. For example, nothing material has happened to the federal Airline Passenger Bill of Rights Act of 2007, introduced by Sen. Barbara Boxer (D-Calif.), since last April when a hearing was held. It's all show and no-go on Capitol Hill.

These are mostly the same politicians, remember, who rushed to protect the airlines immediately after 9/11 and who want today to give immunity to telecommunications companies who help the government engage in warrantless domestic surveillance.

In the eternal struggle between corporate interests and the interests of the people, it's manifest which side our government is on. Don't look for the White House, in other words, to rush to the rescue, either.

Well-meaning passenger-rights activists are stuck in the middle-seat here. They can't get the pols on Capitol Hill to take a bill of rights seriously. They can't get the administration to buck up against their corporate backers. And ultimately they won't be able to rely upon state efforts because those are blocked by preemption doctrine.

Everyone - except industry shills - acknowledges the problem; no one wants to do anything about it.

So where's the good news? Why the reason for optimism? Because this is how legal changes often come about in America. States are typically more responsive to the sorts of complaints asserted here. Laws are enacted. Court cases help raise public awareness. And - eventually - even through a series of judicial defeats and legislative inaction, the issue generates the sort of political momentum that even the most intransigent and airline lobby-loving lawmakers on Capitol Hill cannot ignore.

When the 2nd Circuit blows away the New York effort, for example, that state's representatives in Congress ought to lean in and help push federal passenger legislation up that tall hill; ditto for the doomed passenger rights efforts in California and Pennsylvania. Pretty soon, there will be so much grassroots pressure - so much anger directed from so many different constituencies - that the legislative or executive branches will simply have to step in and do what should have been done years ago: put the dignity of air travelers ahead of the greed of airline executives and shareholders.

The New York Bill of Rights and its progeny are fairly straightforward affairs, neither grand nor particularly onerous to the airline industry. And I'm sure it's a point of pride within the airline lobby that even reasonable requirements like the ones enacted by New York so far have been blocked in Congress.

But eventually, even late flights take off. Appeals court defeat or no, a passenger Bill of Rights has pushed off the gate and is ready to taxi.