Passenger Rights Not Cleared For Take-Off

Andrew Cohen: State And Federal Bills To Protect Flyers Still Stuck In Holding Pattern

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

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Take heart, fellow airline passengers. Our time is near.

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.

[scottyusa]

well duh the passenger bill of rights should be a federeal law. Do you expect the airlines to adhere to different passenger rights laws depending on which state they are in??

[neo267-2009]

"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."

Keep your liberal BS politics out of your "reporting."

[cyberus-2009]

If congresscritters were required to fly coach on regular flights ....

... I''m willing to bet the first time one of THEM got stuck on a runway for 5 hours with overflowing toilets things would change FAST!

[gkc99]

"Of course Democrats would never tell you that the bill was authored by the Trial Lawyers Association, the Largest Single financial backer of Democrats"--Posted by demslie


I''d love to see you stuck in steerage in the seat opposite the "rest room" as the $hit flows out the door and over your shoes.

[irliberal]

Any wait of longer than 30 minutes on the runway or any flight later than 1 hour behind schedule in arriving or leaving from the gate should automatically mean a 100% refund of every passenger ticket for that flight. Demand it.

[soldat44]

Of course Democrats would never tell you that the bill was authored by the Trial Lawyers Association, the Largest Single financial backer of Democrats. This bill has one purpose, to make it easy for Democrats to sue for Billions if their specific rights are violated as judged by the Slime Democrat Lawyers who wrote the bill. Its the same old words. Democrats going after the Bad old big businesses.

Posted by demslie at 02:19 PM : Mar 07, 2008

What the H@ll are you talking about?!

[soldat44]

Of course they''''''''re not ready...The Airline Lobbyists haven''''''''t put enough loopholes in there yet.

No different than anything else in this God-less Corporate country of ours...er...theirs.

Posted by soldat44

This is the exact words said by members of the Soviet Union before it fell. I know that Communist Democrats hate Capitalist America and were devistated when the USSR failed. OH, well, Hillary might get elected and the Democrats will get another opportunity to turn America into a Communist Dictatorship. That will make everyone happy.

Posted by demslie at 02:24 PM : Mar 07, 2008

Whatever...

[antoniof123]

[OH, well, Hillary might get elected and the Democrats will get another opportunity to turn America into a Communist Dictatorship. That will make everyone happy.]
[Posted by demslie at 02:24 PM : Mar 07, 2008]


Are as close to brain dead as you can come and still know when you need to eat.

Hillary Clinton is not a communist moron she is middle of the road. But you Bush is fascist that is ultra right wing and they are going to be brough down this year. Too bad we can''t outlaw them.

[bobnjersey]

[Democrats going after the Bad old big businesses.]
[Posted by demslie at 02:19 PM : Mar 07, 2008]

people disrespected and wronged will go after those that disrespect for money ... as it should be.

it''s only because they have no ramifications from leaving 100+ people in an aluminum tube for eight hours that allows them to get away with it.

they should be responsible for their actions ... just like everyone else should be. and when they choose the arrogant path ... they should have to pay.

since money is all they know ... the loss of it is an excellent motivator.

[bobnjersey]

[OH, well, Hillary might get elected and the Democrats will get another opportunity to turn America into a Communist Dictatorship. That will make everyone happy.]
[Posted by demslie at 02:24 PM : Mar 07, 2008]

another opportunity at a communist dictatorship? when was the first opportunity?

you''re quite the little brainwashed b!tch, aren''t you?

[netmer0]

"To all US based airline marketing chiefs" - attention
===========================================
Voluntarily agree to abide by NY Bill-Of-Rights standards, even without the force of law, and market the heck out of it.

Can you imagine the incredibly positive public response and free publicity that will go to the first airline to do so? Not to mention it might actually increase their business. All for something that won''t cost them billions of dollars in capital or operating expenses to implement.

Are you listening out there ??

[demslie]

Of course they''''re not ready...The Airline Lobbyists haven''''t put enough loopholes in there yet.

No different than anything else in this God-less Corporate country of ours...er...theirs.

Posted by soldat44

This is the exact words said by members of the Soviet Union before it fell. I know that Communist Democrats hate Capitalist America and were devistated when the USSR failed. OH, well, Hillary might get elected and the Democrats will get another opportunity to turn America into a Communist Dictatorship. That will make everyone happy.

[demslie]

Of course Democrats would never tell you that the bill was authored by the Trial Lawyers Association, the Largest Single financial backer of Democrats. This bill has one purpose, to make it easy for Democrats to sue for Billions if their specific rights are violated as judged by the Slime Democrat Lawyers who wrote the bill. Its the same old words. Democrats going after the Bad old big businesses.

[soldat44]

Of course they''re not ready...The Airline Lobbyists haven''t put enough loopholes in there yet.

No different than anything else in this God-less Corporate country of ours...er...theirs.

[bobnjersey]

[Well-meaning passenger-rights activists are stuck in the middle-seat here. They can%u2019t get the pols on Capitol Hill to take a bill of rights seriously. They can%u2019t get the administration to buck up against their corporate backers. And ultimately they won%u2019t 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. ]

everyone stop flying ... lets see who can last the longest.