"Plan to Enlarge O'Hare Airport in Chicago Violates Constitutional Law, Legal Scholar Says"

Monday, April 1, 2002

Plan to Enlarge O'Hare Airport in Chicago Violates Constitutional Law,
Legal Scholar Says


CHAMPAIGN, Ill., (ASCRIBE NEWS) -- A University of Illinois law
professor says that proposed federal legislation to give Chicago the
green light to proceed with a $6.6 billion expansion of O'Hare
International Airport is unconstitutional. 

Ronald D. Rotunda, a UI professor of law, wrote last month that the
hotly debated O'Hare bill, sponsored by Sen. Dick Durbin, D-Ill., and
Rep. William Lipinski, D-Ill., would violate the 10th Amendment right of
states to make laws for municipalities free of federal intervention.
Rotunda offered his opinion at the request of Rep. Henry J. Hyde, R-Ill.


"Congress cannot confer powers on a political subdivision of a state
where the state has expressly limited its delegation of state power,"
Rotunda wrote. Thus, the UI scholar contended that the bill - letting
Chicago expand O'Hare runways as a matter of federal policy implemented
by U.S. aviation officials - would subvert the provisions of the
Illinois Aeronautics Act. 

Rotunda's position adds a new wrinkle to the political agreement reached
late last year between Mayor Richard Daley of Chicago and Illinois Gov.
George Ryan to expand O'Hare and build a third Chicago-area airport near
Peotone. Some critics have argued that only one of the two projects is
financially feasible or environmentally sound. 

The aim of the O'Hare bill is to protect the Daley-Ryan plan from being
reversed by the Illinois General Assembly or a future governor. Ryan is
not seeking re-election this fall. 

According to Rotunda, state law expressly limits Chicago's power to make
"any alteration" to O'Hare Airport unless it first obtains a permit from
the state. Chicago has not obtained a permit. "This fact is what has led
to the proposed federal intervention," Rotunda said in an interview. 

While the federal government has the power to regulate "interstate
commerce," the bill violates the Constitution by singling out a specific
project (the O'Hare expansion) rather than imposing a regulation that
governs all states or private parties. 

"Congress can regulate the states using the commerce clause if it
imposes requirements on the states that are generally applicable,"
Rotunda wrote. But a 1997 Supreme Court ruling (Printz v. U.S.)
invalidated legislation that empowered a local agency to do something
prohibited under state law. "Congress lacks the power under the
Constitution to regulate the state's regulation of interstate commerce,"
Rotunda concluded. 

Rotunda is a nationally recognized authority on constitutional law and
has written or co-written two of the most widely used books on the
subject. 

His opinion of the O'Hare controversy has been applauded by the Suburban
O'Hare Commission, which represents suburbs that oppose the O'Hare
expansion. Sen. Peter Fitzgerald, R-Ill., has led congressional
opposition to the proposed legislation.


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