Amicus Curiae Brief — Alaska Airlines, Inc. v. Brock

. Supreme Court, U.8.

la PILED

UL 18 1986

ANIOL, JR.

IN THE

Supreme Court of the uited States

OCTOBER TERM, 1985

ALASKA AIRLINES, INC., et al.,

. Petitioners,

WILLIAM E. BROocK, SECRETARY OF LABOR, et al., a

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS AS

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

ROBERT M. WEINBERG

PETER O. SHINEVAR

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390

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TABLE OF CONTENTS

Page

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INTEREST OF THE AMICUS CURIAE........................ 1

| RE ye erenneneme 2

ERS Ce ET 3

t

IND ieniitinciinetemmasensesnen SSIES PASE SSR Pit PORE ae 11

TABLE OF AUTHORITIES

CASES:

Bowsher v. Synar, 54 USLW 5064 (U.S. July 7,

SASS eT aS aE TRC eens A 7

Champlin Refining Co. v. Corporation Commission,

I 10-11

Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, 467 U.S. 837 (1984) ..................-x.....-- 5

Furniture Moving Drivers v. Crowley, 467 U.S.

Se ERR ae ae 5

Illinois Commerce Com’n v. I.C.C., 749 F.2d 875

(D.C. Cir. 1984) (Scalia, J., dissenting), cert.

GG eee 9

STATUTES:

Airline Deregulation Act of 1978, Pub. L. No. 95-

504, 92 Stat. 1705 et seq.

Section 48, 49 U.S.C. App. § 1552 ................... passim

LEGISLATIVE HISTORY:

- S™ - deeeeaniietibndediblnkene 7

TAN 8

TTA ALIS TR Te 8

MISCELLANEOUS:

Easterbrook, The Supreme Court, 1983 Term—

Foreword: The Court and the Economic System,

2) ee Ee renee 5, 9

Choper, Judicial Review and the National Political

I iciiciitticenicnncecsecianminatii 5

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-920

ALASKA AIRLINES, INC., et al.,

» Petitioners,

WILLIAM E. Brock, SECRETARY OF LABOR, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS AS

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

This brief amicus curiae is filed with the consent of the

parties, as provided for in the Rules of the Court.

INTEREST OF THE AMICUS CURIAE

The American Federation of Labor and Congress of

Industrial Organizations is a federation of 96 national ©

and international unions with a total membership of ap-

proximately. 13,000,000 working men and women. AFL-

CIO unions and the members of those unions will be di-

rectly affected by the result reached in this case. In ad-

dition, the AFL-CIO has a more general interest in the

2

standards that are applied to resolve questions of sever-

ability when a portion of a statute is invalid.

SUMMARY OF ARGUMENT

The question in this case is not whether the statute is

severable, but rather at what point the statute should be

severed. Petitioners argue for excision from the Airline

Deregulation Act of 1978 of the whole of the Act’s em-

ployee protection provisions. Respondents, on the other

hand, support the position of the court of appeals that

only the part of the Act providing for the unconstitutional

legislative veto should be severed.

We show in this brief that it is not the court below

but petitioners who offer a result that is unfaithful to

the will of Congress. Like much legislation involving mat- |

ters of economic regulation, the ADA is in significant

part the product of negotiation and compromise among

legislators holding different views and priorities and

among contending interest groups. The legislative process

that culminated in the passage of the ADA involved in-

tense lobbying by, among others, the following constituen-

cies: consumers, the airline industry, smaller communi-

ties, regions of the country, and unions representing em-

ployees in the industry. Each of these constituencies as-

serted a different set of interests with respect to the sub-

jects of the legislation. The enacting consensus ulti-

mately formed in Congress was the result of compromises

and trade-offs made among legislators who placed vastly

different values on these diverse interests.

The enactment of the employee protection provisions of

the ADA must be understood as the product of this proc-

ess. What petitioners seek in this case is to alter the

bargain that was the basis for the legislation. By depriv-

ing protected employees of the “first right of hire,” peti-

tioners would be freed of an obligation Congress placed

upon them as a condition of deregulation and would thus

achieve for themselves a better deal than that which is

embodied in the congressional enactment. Protected em-

ployees, on the other hand, would be deprived of their

part of the legislative bargain.

Where the terms of legislation are a function of com-

promise between diverse interest groups, invalid statu-

tory provisions should not be severed from the rest of a

statute if to do so would alter the legislative bargain that

was reached. The result petitioners urge would alter the

legislative bargain embodied in the ADA. The result

reached by the court below is, on the other hand, faith-

ful to that bargain.

ARGUMENT

1. The question posed by petitioners is not whether the

unconstitutional legislative veto provision of the Airline

Deregulation Act of 1978 (hereinafter “ADA” or “the

Act”) should be severed from that Act. Indeed, no party

to this case is contending that the statute at issue here is

not severable. The petitioner airlines differ from the

court of appeals as to the point at which the severance

should take place. The airlines contend that the entirety

of § 43 of ADA—which contains the whole of the em-

ployee protective provisions of the Act—should be severed.

The court of appeals determined that only the portion of

§ 43 that provides for the unconstitutional legislative veto

is to be severed. In practical terms, what hangs in the

balance is whether the “first right of hire” that Congress

provided in § 43(d) of the Act to a statutorily defined

class of protected ernployees should be invalidated.’

It is our submission that the very principles under-

pinning the legislature’s primacy in the development of

statutory law that petitioners recite at length in their

1The “monthly assistance payments” portion of § 43 has never

been implemented. That part of the Act is expressly made “sub-

ject to such amounts as are provided in appropriations acts... .”

§ 43(a)(1). Congress has never appropriated any money to fund

this program.

4

brief—principles with which we agree—preclude the re-

sult that petitioners urge in this case. For it is not the

court below but petitioners who offer a result that would

fail to effectuate the will of Congress as embodied in the

ADA.

The respondents in this case have persuasively docu-

mented: that Congress directly created with considerable

specificity a “first right of hire” for a class of protected

employees; that by virtue of §43(d) that right exists

unconditionally without the need for any subsequent ac-

tion by the Secretary of Labor; that any regulations the

Secretary might choose to issue to implement the “first

right of hire” must be within the quite specific param-

eters of that right spelled out by Congress in the Act;

and that the reasons for inclusion of the one-house veto

provision in the Act had to do with a distinct employee

benefit provision (which has since effectively become

moot)—the monthly assistance payments provision—

which is not self-implementing but requires action by,

inter alia, the Secretary before it would become effective.

We do not intend here to rehash the submissions of the

respondents on these points. Suffice it to say in this re-

gard that respondents have shown that severing the un-

constitutional veto provision from the bill—or severing

that provision together with the monthly payments pro-

vision—would not infringe Congress’ legislative preroga-

tives nor alter the careful balances that Congress struck

in enacting the ADA.

While it is unnecessary to go further, we believe it is

useful to explore the implications of severing the statute

at the point urged by petitioners—viz., removing the en-

tire employee protection provision from the ADA. Such

an inquiry serves to focus the factors that should guide

resolution of questions of severability. In contrast to the

point of severance chosen by the court below, severing

the statute at the point urged by petitioners would alter

a balance struck by Congress and constitute a judicial

trespass in the legislative province.

5:

2. Like much legislation involving matters of economic

regulation, the ADA is in significant part the product of

negotiation and compromise among legislators holding

different views and priorities and among contending in-

terest groups. This Court has taken note of this phe-

nomenon in the contexts of labor and environmental leg-

islation. See, e.g., Furniture Moving Drivers v. Crowley,

467 U.S. 526, 542 (1984) (“Like much federal labor

legislation, the statute was ‘the product of conflict and

compromise between strongly held and opposed views.

... ”); Chevron, U.S.A., Inc. v. Natural Resources De-

fense Council, 467 U.S. 837, 847 (1984) (“As always

in this area, the legislative struggle was basically be-

tween interests seeking strict schemes to reduce pollution

rapidly to eliminate its social costs and interests advanc-

ing the economic concern that strict schemes would re-

tard industrial development with attendant social costs.’’).

See also Easterbrook, The Supreme Court, 1983 Term—

Foreword: The Court and the Economic System, 98

Harv. L. Rev. 4, 17, 46 (1984) ; Choper, Judicial Review

and the National Political Process 9 (1980).

The legislative process that culminated in the passage

of the ADA had the potential directly and immediately

to affect the lives and fortunes of consumers, the airline

industry, smaller communities, regions of the country and

employees in the industry. That process therefore en-

gaged the intense lobbying efforts of all of those con-

stituencies, each expressing a different view on the ex-

tent to which airlines should be deregulated and, passing

that, on the myriad ways in which deregulation should be

accomplished. The enacting consensus ultimately formed

in Congress was the result of compromises and trade-offs

made among legislators who placed vastly different values

on these diverse interests.

As is generally the case with major economic legis-

lation, those compromises reflected a calculus of the pub-

lic interest, of politics, and of publicity and persuasion.

6

The series of initiatives and responses, agreements and

disagreements that produced the final bill were shaped

also by the rules, procedures and understandings that

Congress has formulated to serve its 535 members’ needs,

and to allocate power between those who seek immediate

legislative action and those who desire more deliberation

or seek to preserve the status quo. And, of course, the

participants in this legislative debate were all acutely

conscious of the fact that Congress has much to do and

little time in a session in which to do it, that time and

tide wait for no man and no legislative measure, and that

delay is therefore often a weapon for the weak and that

compromise with these delaying forces is often a weapon

for the strong. It is this complex of forces generated by

the legislative system as it works in the Congress of the

United States that determines which bills are introduced,

which are seriously pursued, which survive scrutiny in

committee hearings and mark-ups, which are scheduled

for floor action and, for those few bills that make it

through these tests, what is subtracted that the original

proponents desired and what is added that the original

opponents desired in order to achieve an enacting con-

sensus.

The ADA’s legislative path is well described in the

following excerpt from a floor speech by Senator Gold-

water:

The distinguished Senator from Nevada (MR. CAN-

NON), and now the committee’s chairman, deserves

great credit for having tried to achieve a consensus

on this highly complex legislation. That total agree-

ment proved impossible is no reflection on him, but

rather it is a result of having to reconcile many con-

flicting claims, some of which are:

First. Consumer desires for lower air fares dur-

ing a period of escalating costs, especially fuel.

Second. Varying financial conditions of the air-

lines and their ability to compete in a more open

marketplace.

7

Third. Regional differences affecting access to the

national air transportation system.

Fourth. Workers in the industry fearing a shake-

out and a loss of jobs.

Fifth. Reluctance on the part of long-term lend-

ers to provide capital during a period of financial

uncertainty in the industry.

Sixth. Fears by smaller communities that the air-

lines will compete on the longhaul, dense routes and

therefore, they will lose service.

These are some of the concerns that came into play

during the markup of 8.2493.

It took a recordbreaking 20 markup sessions to pro-

duce a bill. I submit that is a pretty good indicator

of the amount of disagreement or doubt on the part

of the committee members. [124 Cong. Rec. 10,663-64

(1978) ].

The enactment of § 43 must be understood as the prod-

uct of this process. In the tug and haul of the process,

Congress determined that covered airlines seeking de-

regulation would have this price.to pay: a protected class

of employees would have the “first right of hire” if those

employees should lose their jobs for reasons other than

cause during the ten year period immediately following

enactment of the ADA. Payment of this price was part

and parcel of the concensus that enacted the bill. Thus,

when Senator Hatch proposed an amendment to remove

altogether the employee protective provisions from the

bill, Senator Kennedy responded:

Mr. President, I hope the amendment of the Sena-

tor from Utah will be defeated. In this legislation,

we are effectively guaranteeing service to small com-

munities in this Nation for a period of 10 years. We

are maintaining certain basic protections for the a -

lines and their shareholders for a period in the fu-

ture. Airlines are even permitted to protect certain

selected routes from automatic entry despite the anti-

competitive effect of such protection for airlines. We

are writing in guarantees for just about every aspect

8

of the airline industry. That happens to be the fact

of the matter.

We also have a limited employee protection policy

written into this legislation. That is only fair; but

the amendment of the Senator from Utah would

strike it out. I say we are protecting the stockhold-

ers, we are protecting the communities, and we are

protecting the airlines with this legislation. The ef-

fect of the amendment of the Senator from Utah

would be to say, “It is OK to protect all of those

people, but we should wipe out and eliminate what

limited protections there are for the employees.” I

say that would be unfair and unwarranted. [124

Cong. Rec. 10,682 (1978) }.

Senator Hatch’s amendment was defeated by a vote of

85 to 7. Id.

Similarly, when Representative Anderson, the ADA’s

floor manager in the House of Representatives, urged

adoption by the House of the conference report on the

bill, he was careful to state the provisions providing for

employee protection and to give his colleagues the follow-

ing assurance:

The House provisions on employee protection and

mutual aid were stronger than those in the confer-

ence bill. However, the conference provisions are con-

siderably stronger than the Senate bill, particularly

with respect to the mutual aid pact, regarding which

the Senate proposed no change in existing law. I

believe that the conference report goes a long way

toward the House proposals and that the conference

provisions represent substantial progress for the air-

line employees. [124 Cong. Rec. 38,522 (1978) }.

What petitioner airlines seek in this case is to “alter

the balance that Congress had in mind in drafting” the

ADA. Bowsher v. Synar, 54 USLW 5064, 5070 (U.S.

July 7, 1986). By depriving protected employees of the

“first right of hire” the airlines would be freed of an

obligation Congress placed upon them as a condition of

deregulation and would in that wzy achieve for themselves

9

a better bargain than that which they obtained in the

legislative process. Protected employees, on the other

hand, would be deprived of their part of the legislative

bargain.

Such a result negates, rather than effectuates, the con-

gressional will. The point is well-made by Professor East-

erbrook:

If legislation grows out of compromises among

special interests . . . a court cannot add enforcement

to get more of what Congress wanted. What Con-

gress wanted was the compromise, not the objectives

of the contending interests. . .. [The statute] is

designed to do what it does in fact. The stopping

points are as important as the other provisions. If the

statute gave Group X twenty-five percent of what

it wanted, it probably meant contending groups to

keep the rest. A court cannot observe that the stat-

ute gives Group X more than it had before and then

keep moving in the same direction. The compromise

was that Group X would get some benefits but not

more. When a court observes that Congress pro-

pelled Group X part way to its desired end, it can-

not assist Group X farther along the journey with-

out undoing the structure of the deal. [98 Harv. L.

Rev. at 46].?

2 Cf. Illinois Commerce Com’n v. 1.C.C., 749 F.2d 875, 892-893

(D.C. Cir. 1984) (Scalia, J., dissenting), cert. denied, 106 S. Ct.

70 (1985) :

It is my impression that, in the long era of expanding eco-

nomic regulation that preceded the current trend towards dis-

engagement, zealous regulators more than once turned a legis-

lative compromise into an unqualified victory by successfully

urging that the limiting text of a statute be interpreted in

light of its “broad remedial purposes”—as though there had

been only one side in the Congress, or as though prescribed

limitations were less important than the prescrjbed powers

which they circumscribed.

* * + *

Legislative compromise (which is to say most intelligent legis-

lation) becomes impossible when there is no assurance that the

statutory words in which it is contained will be honored.

10

The “first right of hire” established and defined in

§43(d) is an integral part of the legislative bargain

embodied in the ADA. That legislated right, which is not

constitutionally infirm, should not be taken away in the

judicial process.

3. Petitioners suggest that all this is not of much moment

because, after this Court strikes down § 43, “[i]f Con-

gr2ss wishes to reinstate a statute, it can do so.” Pet. Br.

at 18. This suggestion does not seem to support an argu-

ment for striking down all, rather than only a part, of

£43 or indeed for any particular result; it is equally

true that if Congress is not satisfied with a result that

preserves the valid parts of § 43, Congress can repeal the

provision. More important, this suggestion is cynical in

the extreme because it studiously ignores the realities of

the legislative process. As we have discussed, § 43 was

part of an overall legislative bargain that was arrived

at by a transcient coalition of diverse interests. And,

Congress did not happen to deal with the question of air-

line deregulation by random chance. That issue was

pushed to the top of Congress’ agenda over a thousand

competing and worthy public concerns by a unique set of

pressures. As the result of the ADA’s passage, the other

members of the coalition that made passage of the ADA

occur have secured their parts of the legislative bargain.

They have no interest in now joining with the employee

representatives to reinstate the protected employees’ part

of the package. Thus, while there is no question that the

Congress that enacted the ADA meant to establish a

“first right of hire” for protected employees, there is

no guarantee that the congressional coalition that enacted

ADA could now be reconstructed to reenact the “first

right of hire’ by itself; indeed such a reenactment is

wholly improbable.

4. The classic formulation of the standard of severabil-

ity stated in Champlin Refining Co. v. Corporation Com-

mission, 286 U.S. 210, 234 (1932), makes clear that the

issue is one of legislative intent:

11

Unless it is evident that the legislature would not

have enacted those provisions which are within its

power, independently of that which is not, the in-

valid part may be dropped if what is left is fully

operative as a law.

As with other questions of legislative intent care must be

taken to understand the values and interests that are

embodied in the enactment. Where the terms of legisla-

tion are a function of compromise among diverse inter-

est groups and one provision is invalid, the judicial task

in determining whether the statute is severable, and if

so what is the proper point of severance, is to ensure

that nothing is done to upset the legislative bargain. Tuo

be sure, by definition any severance works some change

in the balance struck in the enactment. But there are

cases where a point of severance may be found that is

faithful to the essence of the legislative bargain. In this

case, the court of appeals found that point. On the other

hand, the result petitioners urge would alter the legisla-

tive bargain embodied in the ADA.

CONCLUSION

For the foregoing reasons, the decision of the court of

appeals should be affirmed.

Respectfully submitted,

ROBERT M. WEINBERG

PETER 0. SHINEVAR

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390