If That Is the Law Then

Steven Spielberg

The nineteenth century British author Charles Dickens once worked as a clerk in a law firm and many of his novels’ characters were derived from clients he met during his work in the firm. In one of his novels from the 1840’s, I do not remember which Dickens’ novel, there was a colloquy between two of the characters. The first character explains the workings of a new British law that had just gone into effect to the second character. Upon hearing of the new law the second character responds incredulously: “Sir, if that is the law, then the law is an ass!” Since reading that Dickens novel whose title I do remember, I have often read of new laws or legal rulings that remind me that the Dickens character was correct in describing the “law as an ass.” Here is one case on point I remember writing about at the time.

In 2008 the U.S. Court of Appeals for the Second Circuit over turned a, then recently, enacted New York law that required airlines to give food, water, clean toilets and fresh air to passengers stuck in delayed planes. The law was struck down by the court that noted that though the measure was well-intentioned it was violative of federal authority.

The law had been passed after thousands of passengers were stranded for up to ten hours on several JetBlue Airways flights at Kennedy International Airport on Valentine’s Day in 2007. The passengers complained of being deprived of food and water and that the toilets overflowed. A month later passengers of other airlines were stranded aboard other airlines at Kennedy after an ice storm.

The law was challenged by the Air Transport Association of America, the industry trade group representing leading U.S. airlines. Strange that this trade group actually seemed to be advocating for passengers being deprived of food, water and clean toilets on stranded commercial airliners.

The Second Circuit held that though the goals of the law were “laudable” and the circumstances prompting its adoption “deplorable,” only the federal government has the authority to pass such regulations. The preemption doctrine provides that under the Commerce Clause federal rules protecting the health, safety and welfare of people travelling in our country must take precedent and preempt or override any state law statues that speak to the same matter. We may certainly understand the federal preemption doctrine; nevertheless we should, in this case say: “Sir, if that is the law then the law is an ass!”

See: Air Transport Ass’n of America, Inc. v. Cuomo, No. 07-5771-cv, slip op (2d Cir. March 25 2008). 2008 U.S. App. Lexis 6130

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