Police Power, Toilets, and Fresh Air

Recently, the state of New York passed a law commonly called the Airline Passenger Bill of Rights. The law, which applies only to airports within New York, requires that airlines provide water, food, fresh air, and bathrooms to passengers on any flight stuck on the tarmac for more than three hours.

The Air Transport Association of America, an airline industry group, challenged the law in federal district court, basically claiming that the law is about airline service, which is regulated by the federal government, not by individual states. But the judge dismissed the case, claiming that “it is a legitimate use of state police power to protect the health and safety of its citizens.”*

That’s the headline, but let’s dig a little deeper to find our what exactly is going on here. What is this “police power?” It doesn’t seem like the police have much to do with the situation.

But that isn’t what “police power” means. Police power, which goes all the way back to the 1600s in England, is the ability to create laws for the health, morals, and safety of the people. This is considered an “inherent” power – it doesn’t need to be written anywhere for the government to have it, it is just a normal, accepted part of what government does. But the 1oth Amendment to the US Constitution says that if the Constitution doesn’t specifically give a power to the federal government, and doesn’t deny it to the states, then the states get that power. The Constitution doesn’t give police power to the federal government, and it doesn’t deny it to the states, so in the US the states have the police power. The states get to pass laws for the health, morals, and safety of their people. (OK, so I’m simplifying here, but believe me, you only want the simply version.)

According to the judge in this case, giving food and water to passengers stuck on grounded airplanes is an issue of health and safety, so states have the right to legislate for it under their police powers. That’s why he dismissed the case. The Air Transport Association was claiming that the state of New York didn’t have the power to pass the law, but the judge said that since the law was for the health and safety of the people, New York could pass it.

By the way, the police power – health, morals, and safety – is why states can, for instance

• pass zoning regulations: for instance, banning strip clubs within a certain distance of churches or schools
• declare states of emergency within their borders and even force evacuations
• regulate the sale of products that the state considers harmful, such as alcohol (yes, drinking ages are determined by the states, not the federal government)

Of course, there has always been a debate about the limits of state police power. Sexual ethics is perhaps the area of greatest debate today. In the 1986 case of Bowers v. Hardwick, the US Supreme Court upheld a Texas state law that criminalized homosexual sex. But in 2003, the Court overturned that law in the case of Lawrence v. Texas. Texas asserted its right to regulate sexual behavior as part of its police powers, but the Supreme Court ruled that the right to privacy trumped state police power in the matter of private sexual behavior.

Perhaps in a few years the US Supreme Court will rule on police power and airline passenger access to food and water. Until then, we have only the case of Air Transport Association of America v. Cuomo, and the decision of Judge Kahn, who ruled that the “Passenger Bill of Rights is an exercise in state protection of the public health.”

* Stashenko, Joel. “Federal Judge Upholds ‘Passenger Bill of Rights.” New York Law Journal (21 December 2007).