Biden and California force unfriendly skies on air travelers

Whether real or perceived, the combination of high taxes, endless regulations, massive litigation, rising crime, increasing homelessness, and a political prioritization of social and environmental policies over practical business solutions has caused an exodus of small and large companies from the Golden State.

California’s latest target is the airline industry. California would require its onerous employee meal-and-rest-break laws to apply to all California flight attendants, even if their routes are entirely outside of California. That means California dictates what goes on far beyond its own borders.

We all know flight attendants are hard-working professionals and are vital to business, recreation, and even helping combat crimes such as human trafficking. We should thus encourage airlines to do all they can to support the physical and mental health of flight crews. But California’s laws, applied nationwide, would have a significant impact on the costs to airlines and travelers and would undo the tremendous benefits of airline deregulation.

Airline deregulation is one of the great success stories of the past 50 years. In 1978, Congress passed the Airline Deregulation Act, which freed the industry from federal micromanagement. Since then, the relative cost of flying has dropped by half.

That affordable and reliable access to the skies has produced trillions of dollars in economic growth for state and local economies and allowed far more personal connectivity with family, friends, customers, and clients.

But the 9th Circuit Court of Appeals has put that success story in peril. About a year ago, the court held that California’s meal-and-rest-break laws applied to Virgin America’s flight attendants who happen to work in California.

The 9th Circuit’s decision undermines the very core of the Airline Deregulation Act, which overrides any state law that would significantly affect “prices, routes, and services” if applied to airlines. The act, passed by Congress and enforced for decades, specifically prohibits the exact conduct California is attempting to force on America.

Tellingly, even the 9th Circuit could not deny that California’s law would impose significant burdens. However, the court sidestepped the requirements of the Airline Deregulation Act by finding that airlines could hire additional flight crews.

As the Justice Department argued in the 9th Circuit, merely hiring more crew is not feasible. First, federal law bars such a solution. Flight attendants have FAA-mandated safety responsibilities while the plane is in the air, so they cannot go off-duty every few hours. Every flight attendant on the flight must remain on duty to respond to emergencies. Second, staffing multiple teams of flight attendants on every flight is itself a significant burden. Hiring redundant flight attendants would increase costs and take seats away from paying customers.

That means that airlines would have to offer breaks between flights. But flight crew schedules are tightly choreographed. To build in frequent breaks would necessarily mean scheduling fewer flights and accepting longer delays.

And, of course, if the 9th Circuit’s decision stands, then airlines will be constricted by similar laws in other states, too. We could have a patchwork of 51 different legal regimes imposed on any airline that tries to fly across state lines. All of this is exactly what the Airline Deregulation Act was meant to prevent, which is what the 9th Circuit should have held.

Virgin America is currently seeking a review of this decision in the Supreme Court. I joined an amicus brief of 19 states arguing that the court should grant review to undo the 9th Circuit’s errors.

But there is one more twist to the story: Biden’s DOJ has in recent months flip-flopped entirely and now argues that the Supreme Court should not take up the case.

This directly contradicts the DOJ’s prior position, which argued in support of Virgin America. The DOJ has articulated no good reason for its 180-degree about-face.

The DOJ admits that the 9th Circuit did not engage in the correct analysis. But the DOJ now argues that maybe state law is somehow compatible with FAA requirements because maybe a flight attendant could be “off-duty” for purposes of California law but “on duty” for purposes of federal law. Huh? Even the DOJ admits that this theory is dubious.

And the DOJ now entirely ignores what it previously argued — that the Airline Deregulation Act overrides California law because it affects “prices, routes, and services.” Simply put, this is not a serious legal argument; it is political gamesmanship. The Biden administration apparently wants California to be able to throw a wrench into the airline industry.

It’s one thing if California wants to ruin its own business climate. But California has a history of trying to export its policy decisions to the rest of America. Delta Airlines has a major hub in Utah. SkyWest Airlines, headquartered in Utah, is the largest regional airline in the world, carrying over 50 million passengers a year. The effects of California’s laws will be felt by these and all other airlines.

Allowing California to dictate when flight crews can work in Utah or any other state is absurd. The Biden administration seemingly never misses an opportunity to increase costs for consumers. But this issue is too important for the DOJ’s legal hypocrisy.

Airlines provide irreplaceable economic benefits. The 9th Circuit’s decision threatens to reimpose the web of regulation that stifled economic growth before airline deregulation. If the Supreme Court doesn’t step in, families and businesses will soon add increased travel costs to the pain of high inflation.

Sean Reyes is Utah’s attorney general.