Petition for Writ of Certiorari — Kansas v. United States
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FILED
93 201 8 JUN 1 71994
In the Supreme Court of the United States
OCTOBER TERM, 1993
STATE OF KANSAS, ET AL., PETITIONERS
v.
UNITED STATES OF AMERICA, ET AL
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
D)avip J. GALLO ROBERT T. STEPHAN
Special Assistant Attorney General, State of
Attorney General, Kansas
State of Kansas, Counsel of Record
8910 University Center Lane John W. Campbell
Suite 500 Deputy Attorney General,
San Diego, CA 92122-1085 State of Kansas
Telephone: (619) 457-8690 Kansas Judicial Center
Counsel for all Petitioners Second Floor
Topeka, Kansas 66612-1597
Tasacen (913) 296-2215
Counsel for Petitioner, State of
QUESTIONS PRESENTED
1. Whether the Wright Amendment contravenes the Port Pref-
erence Clause.
2. Whether the Wright Amendment impermissibly abridges
freedom of speech.
3. Whether the Wright Amendment impermissibly abridges
fundamental rights of interstate travel.
PARTIES TO THE PROCEEDINGS
AND RULE 29.1 STATEMENT
The petitioners are the State of Kansas, the Wichita Airport
Authority (an instrumentality of the State of Kansas which owns
and operates the Wichita Mid-Continent Airport), Central Col-
lege, Inc. (which owns and operates a travel agency),’ and nine
individual air travelers, viz. Debbie Cannaday, Bebe Daniels, Ber-
nie Dworkin, A. John Hennessey, Jr., Mary Ann Lawing, Dorothy
Lehman, Clifford J. Prescott, Charles W. Singleton, and Spencer
Tepe.
The respondents are the United States of America, Federico
Pefia (as Secretary of the United States Department of Trans-
portation), the United States Department of Transportation, John
V. Coleman (as Director of the Office of Aviation Analysis), the
Office of Aviation Analysis, the Dallas/Fort Worth International
Airport Board, and American Airlines, Inc.?
1 Central College, Inc., has neither a parent company, nor any subsidiary not
wholly owned by Central College, Inc.
2 Petitioners’ knowledge of the nature and extent of the corporate affiliations
of Respondent, American Airlines, Inc. (“American”), is derived from the dis-
closure statement filed by American in the court of appeals. American's disclo-
sure statement recited that American is a wholly-owned subsidiary of AMR Cor-
poration, a publicly-traded company, and that neither AMR Corporation, nor
American, has other subsidiaries or affiliates that have issued shares or debt
securities to the public.
(II)
TABLE OF CONTENTS
Page
CRNUIOUED MEEAITE cacccccccccccccsccecscsecscsecscosees l
JURISDICTION ...........ccccecesceeesceececcereseeecens l
STATUTORY AND REGULATORY
PROVISIONS INVOLVED. ...............:ecceeeeeeeeees 2
RMI, Sanantacttoscecesscsenenecsccccescccencacsess 2
REASONS FOR GRANTING THE PETITION ..... 8
I. SPECIAL CONSIDERATION OF PETITIONS
FOR CERTIORARI IN ORIGINAL JURISDIC-
RITE, Saks ann cscesscshadcccncccccesecenccccce: 8
II. PORT PREFERENCE CLAUSE ................. 9
A. Preferential Regulation Sub-clause ............ ll
B. Enter or Clear Sub-clause ...............+0++. 14
III. RESTRICTIONS UPON SPEECH .............. 17
ie EMIS nansascnnncscccavesencccocsesees 17
B. The Court of Appeals Erred in its
Application of the Central Hudson Criteria 19
(IIT)
IV
1. Substantial Interest Criterion ..............
2. Direct Advancement Criterion .............
3. Reasonable Fit Criterion .................0..
EVs. RRP RIREE REVUE nds cadanedcacdsvennesvans
Page
TABLE OF AUTHORITIES
Cases:
Alabama Great Southern R.R. v.
United States, 340 U.S. 216 (1951) ............... ll
Armour Packing Company v.
United States, 209 U.S. 56 (1908) ................ 12
Attorney General of New York v.
Soto-Lopez, 476 U.S. 898 (1986) ................. 24-26
Austin v. New Hampshire,
SE EEE Avadsvaddercsoicnescadensacesnss 24
Board of Trustees of the
State University of New York v.
FP RE SA, AI notin cc ccscccescossercecses 22, 23
Bigelow v. Virginia,
BE Ce I bods Sade axes Seees Seteavsesedcs 18, 19
Califano v. Aznavorian,
oa es epee Pro Pryee errr eT te ee 24
Carey, etc., et al., v.
Population Services International, et al.,
Pg PO go yy PEE ODS PT PET TERT CEES 18, 19
Central Hudson Gas & Electric
Corporation v. Public Service
Commission of New York, 6, 17, 19,
GEE Oe ee EE deckecebessenceccctcscececosasns 22, 23
City of Houston v.
Federal Aviation Administration,
679 F.2d 1184 (Sth Cir. 1982) .................... 10
City of Milwaukee, et al. v. Block, et al.,
823 F.2d 1158 (7th Cir. 1987) .................... 10
City of Milwaukee, et al. v.
Yeutter, et al., 877 F.2d 540
(7th Cir. 1989), certiorari denied,
GD Des WEE CEE wasdcccceecncsiinasecithecsatscs 10, 14
Continental Air Lines, Inc. t
DOT, 269 U.S.App.D.C. 116;
843 F.2d 1444 (D.C. Cir. 1988) .................. y
Cramer v. Skinner, et al.,
931 F.2d 1020, certiorari denied,
watinies Sa ; 112 S.Ct. 298 (1991),
affirmed following remand, sub nom.
Cramer v. Card, 983 F.2d 232 (Table),
certiorari denied, sub nom.
Cremer o. Peia, —..{. U.S. —
I a 7
Crandall v. Nevada,
DS Wee ee Dn - occ. co ccevcetcdaseckentes 23, 24
Dunn v. Blumenstein,
GR Sa ET cadentsccvemscieca 5 eat ne Lie 24
— uae
vil
Page
Griffin v. Breckenridge,
40S U.S. GB (IGT) .......ccccccccccccccccccccccces 24
Haig v. Agee, 453 U.S. 280 (1981) ............-.. 24
Jones v. Helms, 452 U.S. 412 (1981) ............. 24
et al. v. Texas & New Orleans RR,
GE WE, Be GREED cosecccskecccccsncncesccesccces: ll
Passenger Cases,
48 U.S. (7 How.) 283 (1849) ................2-5+- 16, 23
Paul v. Virginia, 8 Wallace 168 (1869) ......... 23, 24
Peel v. Attorney Registration and
Disciplinary Commission of Illinois,
PE TC EE, dxnncccethesccscenccqecee<concee: 20, 22
Posadas de Puerte Rico Associates v
Tourism Company of Puerto Rico,
ry Bl Fi ee rrrrerrrrrree 18, 19, 22
Shapiro v. Thompson,
3B4 U.S. GIB (IGGD) ..........ccccccccccccccccceses 7, 24-26
State of Kansas, et al. v.
United States of America, et al.,
U.S.App.D.C. —_; 16 F.3d 436
Rc sinccscevotennesesensace passim
State of Kansas, et al. v.
United States of America, et al.,
797 F.Supp. 1042 (D.D.C. 1993) ..............
State of Nevada, et al. v. Watkins,
914 F.2d 1545 (9th Cir. 1990),
certiorari denied, 499 U.S. 906 (1991) ........
State of Pennsylvania v.
Wheeling and Belmont Bridge Co., et al.,
BE EE CHD nceccecacecscnceccevecseses
State of South Carolina v. State of
Georgia, et al., 3 Otto 4 (1876) ................
Twining v. New Jersey,
BEE SPs PP EMD sthosesecdesncsosscccessaneias
United States v. Guest,
gee 5: errr ree
United States v. Ptasynski, et al.,
MIE As OE CRD: Batwccddcadmnscevarsscnncecene
Virginia State Board of Pharmacy v.
Virginia Citizens Consumer Council, Inc.,
nn oe is ceacesesces
Ward v. Maryland,
I Se GED ince verasiecccccccgassagese
Zobel v. Williams, 457 U.S. 55 (1982) ...........
10,
11
13
18
, 27
Constitutional Provisions:
Article I, Section 8, Clause 3
(the “Commerce Clause”) .........-..:seeeeeeeee: 8
Article I, Section 9, Clause 6
(the “Port Preference Clause”) ............-+++++:: 6, 8-17
ITE i cakcadnnsdestkpedabtng dbnehsscanngasconksys )
Article III, Section 2, Clause 2 .............0.00+- g
Article IV, Section 2, Clause 1 6, 7,
(the “Privileges and Immunities Clause”) ........ 23, 27
Me TE cicckscnsnsabavixbbedicud fibdaserdskesee tone 8
Amendment I, Clause 3
(the “Assembly Clause”) ............+202eeeeeeeeees 6
Amendment V, Clause 3
(the “Due Process Clause
of the Fifth Amendment”) ................++--++++: 6, 25
ee TN i ee cca douudecsenenescess 8
Amendment XIV, Section 1, Clause 4
(the “Equal Protection Clause”) ........--.--.+++-
R
Page
Statutes and Regulations:
Title 28, U.S.C., Section 1254(1) ................. l
eee Ts Tres ED, IL, deviva kc daccddcnxeces 6
Act of fam. 30, 1661, 12 Stat. 196 ................ s)
Airline Deregulation Act of 1978,
Pub.L. No. 95-504, 92 Stat. 1705 (1978) ........ 2
International Air Transportation
Competition Act of 1979,
Pub.L. No. 96-192, 94 Stat. 35 (1980) ........... 2
Section 29 of the International Air
Transportation Competition Act of 1979,
Pub.L. No. 96-192, 94 Stat. 35 (1980)
(the “Wright Amendment”) ......................4. passim
Other Authority:
DOT Order 85-12-81 (the “DOT Order”) ...... passim
Gn the Supreme Court of the United States
OCTOBER TERM, 1993
No.
STATE OF KANSAS, ET AL., PETITIONERS,
v.
UNITED STATES OF AMERICA, ET AL.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
The State of Kansas, et al. (“Petitioners”), petition for a writ
of certiorari to review the judgment of the United States Court
of Appeals for the District of Columbia Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, la-15a) is
reported at U.S.App.D.C. ; 16 F.3d 436. The opinion
of the district court (App., infra, 17a-39a) is reported at 797
F.Supp. 1042.
JURISDICTION
The judgment of the court of appeals was entered February
18, 1994. (No petition for rehearing was filed in the court of
appeals.) On April 15, 1994, Chief Justice Rehnquist extended
the time for filing a petition for a writ of certiorari through and
including June 18, 1994. The jurisdiction of this Court is invoked
under Title 28, U.S.C., Section 1254(1).
2
STATUTORY AND REGULATORY
PROVISIONS INVOLVED
The relevant provisions of the International Air Transportation
Competition Act of 1979, Pub.L. No. 96-192, 94 Stat. 35 (1980),
are reproduced at App. E, infra, 41a-42a.
STATEMENT
1. Section 29 of the International Air Transportation Com-
petition Act of 1979, Pub.L. No. 96-192, 94 Stat. 35 (1980) (here-
inafter the “Wright Amendment”) is a
“. . . provision of a distinctly parochial, domestic na-
ture . . . designed to except Love Field [Airport in Dallas,
Texas] from the liberalized entry provisions of the Airline
Deregulation Act of 1978, Pub.L. No. 95-504, 92 Stat. 1705
(1978) . . . The reason for the exception was . . . to pro-
tect [Dallas/Fort Worth International Airport] from com-
petition at Love Field.”
Continental Air Lines, Inc. v. Department of Transportation, 269
U.S.App.D.C. 116; 843 F.2d 1444, 1446 (D.C. Cir. 1988). (Starr,
].)! The Wright Amendment protects Dallas/Fort Worth Inter-
national Airport from competition by restricting passenger service
to and from Love Field, Texas (hereinafter “Love Field”) through
a variety of mechanisms, each of which is intended to burden
those who elect to use Love Field in the course of their interstate
travels. These mechanisms may be classified as (1) actual barriers
to interstate movement, (2) economic disincentives, and (3) pro-
scriptions against speech.
The Wright Amendment restricts passenger service to and from
Love Field and points which do not lie within certain enumerated
states (i.e., Louisiana, Arkansas, Oklahoma, New Mexico, or
‘ In Continental Air Lines, the United States Court of Appeals for the District
of Columbia Circuit denied petitions for review of DOT's Order 85-12-81 (here-
inafter the “DOT Order”), which interprets the Wright Amendment. The DOT
Order is reproduced at App. F, infra, 43a-63a.
3
Texas).2 Thus the unrestricted service area prescribed by the
Wright Amendment is defined by the interstate borders which
constitute the outer perimeter of the Enumerated States. (Such
interstate borders are hereinafter referred to as the “Restricted
Borders” .)
The Wright Amendment erects actual barriers to inteistate
movement by prohibiting air carriers from providing “through
service” for travel between Love Field and points which lie be-
yond the Restricted Borders. (DOT Order, at App., infra, 59a.)°
Thus, under the Wright Amendment's regime, an airline passen-
ger who elects to originate his or her interstate travel at Love
Field (or an airline passenger who elects Love Field as the des-
tination of his or her interstate travel) may not traverse the Re-
stricted Borders by rernaining on a single aircraft. (DOT Order,
at App., infra, 59a.) For example, a Love Field Passenger* bound
from Chicago, Illinois to Love Field must disembark the aircraft
upon which she departed Chicago at some point within the Re-
stricted Borders other than Love Field. This requirement is met
by the use of intermediate airports within the Restricted Borders
(hereinafter “Intermediate Airports”). In the example of a Love
Field Passenger traveling from Chicago to Love Field, the airport
at Tulsa, Oklahoma might be employed as the Intermediate Air-
port. In such case, when the aircraft lands at the Intermediate
Airport (i.e., Tulsa) as required by the Wright Amendment, all
2 Louisiana, Arkansas, Oklahoma, New Mexico, and Texas may be hereinafter
referred to individually or collectively as “Enumerated States”. States which are
not privileged to be among the Enumerated States may be hereinafter referred
to individually or collectively as “Unenumerated States”.
3 The phrase, “through service” refers to the provision of transportation be-
tween an ultimate origin and an ultimate destination on a single ticket for a
single sum fare. “Through service” includes both single-flight service with one
or more stops, and provision of service by connection between two flights. (DOT
Order, at App., infra, 57a.)
‘ Airline passengers who elect to originate their interstate travel at Love Field,
or who elect Love Field as the destination of their interstate travel, are here-
inafter referred to as “Love Field Passengers.”
4
passengers must disembark; they may not re-board the same air-
craft to cortinue their travel to Love Field. However, transpor-
tation to Love Field on that same aircraft is available without
restriction to any and all other persons who desire to travel from
the Intermediate Airport (here, Tulsa) to Love Field.
After they are compelled to disembark aircraft at an Inter-
mediate Airport, Love Field Passengers are permitted to continue
their interstate travels on another aircraft, via the “most efficient
connecting flight”. (DOT Order, at App., infra, 56a.) However,
the Wright Amendment imposes heavy burdens upon those who
elect to do so. The Wright Amendment compels air carriers to
deny certain public accommodations (e.g., baggage handling and
transfer) to such Love Field Passengers. (DOT Order, at App.,
infra, 58a.) By requiring Love Field Passengers to claim and re-
check their baggage at an Intermediate Airport, the Wright
Amendment operates to ensure that, in many cases, the “most
efficient connecting flight” is a later flight than would have been
available to the Love Field Passenger, if her or his baggage had
been handled in the ordinary (i.e., unrestricted) manner. If, as in
many cases, the plane to which a Love Field Passenger would
have connected via an ordinary (i.e., unrestricted) connection de-
parts from an Intermediate Airport within the time required for
claiming and rechecking baggage, the Love Field Passenger may
in practice be delayed for hours before the next plane bound for
the Love Field Passenger’s destination leaves the Intermediate
Airport. Thus, the Wright Amendment operates to impose a de
facto detention period upon Love Field Passengers at Interme-
diate Airports.
The Wright Amendment prohibits air carriers from selling sin-
gle tickets for restricted travel between Love Field and points
beyond the Restricted Borders. (DOT Order, at App., infra, 57a,
59a.) Thus, Love Field Passengers must purchase a combination
of tickets: one for travel between Love Field and an Intermediate
Airport, and one for travel between the Intermediate Airport and
5
the Love Field Passenger’s destination beyond the Restricted Bor-
ders.5
The Wright Amendment prohibits air carriers from granting
through fares for travel between Love Field and any point beyond
the Restricted Borders. (DOT Order, at App., infra, 60a.)
Through fares are “usually lower” than the total fare which would
be charged for “double-ticketed” service to a given destination.
(DOT Order, at App., infra, 58a, n.8.) Thus, the Wright Amend-
ment ensures that the cost of Wright Amendment-restricted dou-
ble-ticketed travel across the Restricted Borders is higher than it
would be in the absence of the Wright Amendment.
The Wright Amendment prohibits air carriers from “offer[ing]
for sale transportation to or from . . . any point which is outside
any [Enumerated] State.” (App, infra, 42a.) This “ban on adver-
tising” prohibits air carriers and even travel agents from “ad-
vertis[ing], promot[ing], or otherwise affirmatively solicit[ing]
double-ticketing passengers.” (DOT Order, at App., infra, 58a,
59a, 60a.) Accordingly, the Wright Amendment prohibits air car-
riers and travel agents from disseminating truthful, “[u]nsolicited
information furnished to the public in any form . . .” which
might facilitate travel between Love Field and points beyond the
Restricted Borders. (DOT Order, at App., infra, 60a.) The Wright
Amendment further prohibits the mere “publication of connect-
ing flight schedules [for double-ticketed service] in airline guides,
flight schedules or similar media.” (DOT Order, at App., infra,
59a. Emphasis added.) Further, the mere act of “stat[ing] as a
single amount” the total cost of service between Love Field and
points beyond the Restricted Borders would constitute an attrib-
ute of through service, and is therefore prohibited by the Wright
Amendment. (DOT Order, at App., infra, 57a and note 8.)
* The sale of such a combination of tickets is referred to as “double ticketing”.
(DOT Order, at App., infra, 56a.)
6
2. In this case, Petitioners challenge the constitutionality of the
Wright Amendment. Specifically, Petitioners contend that the
Wright Amendment, (1) contravenes the Port Preference Clause,
(2) impermissibly regulates the content of protected commercial
speech, and (3) impermissibly burdens and restrains interstate
travel.
Petitioners contend, inter alia, that the Wright Amendment
contravenes the Port Preference Clause by requiring that pas-
senger aircraft bound from Love Field to points beyond the Re-
stricted Borders enter a port within an Enumerated State prior
to traversing the Restricted Borders, and by requiring that pas-
senger aircraft bound from points beyond the Restricted Borders
to Love Field enter a port within an Enumerated State prior.to
entering the port at Love Field.
Petitioners contend, inter alia, that the Wright Amendment's
content regulation of protected speech fails to satisfy any prong
of the three-part test approved by this Court in Central Hudson
Gas & Electric Corp. v. Public Service Comm’n of New York,
infra. Alternatively, Petitioners contend that regulation of com-
mercial speech whose purpose is to propose a commercial trans-
action essential to the exercise of a fundamental right (here, in-
terstate travel) should be subjected to a level of scrutiny higher
than that to which content regulation of ordinary comme-cial
speech is subjected under Central Hudson.
Petitioners contend, inter alia, that the Wright Amendment im-
permissibly abridges their fundamental rights of interstate travel
by burdening their exercise of such right in a manner repugnant
to the Due Process Clause of the Fifth Amendment, the Privileges
and Immunities Clause of Article IV, and the Assembly Clause
of the First Amendment. In brief, Petitioners contend that the
Wright Amendment's classification of persons at Intermediate
Airports as either Love Field Passengers (who are not free to
® The district court’s jurisdiction was invoked under Title 28, U.S.C., Section
1331. Petitioners seek a declaration that the Wright Amendment is unconsti-
tutional, and injunction against enforcement thereof.
-
i
board any flight) or non-Love Field Passengers (who are free to
board any flight) constitutes discrimination so unjustifiable as to
be violative of due process. See Shapiro v. Thompson, infra. Pe-
titioners further contend that the Wright Amendment's burdens
on interstate travel contravene the guarantee of free ingress and
egress which is implied from the Privileges and Immunities
Clause of Article IV (see ex rel., Zobel v. Williams, infra), and
that such guarantee should be held to immunize against inter-
ference by the National Government (as well as against interfer-
ence by the governments of the several states).
On April 23, 1991, Petitioners filed a motion for summary judg-
ment in the district court. The National Government’ and the
remaining Respondents* each responded to Petitioners’ motion
for summary judgment in a timely manner, and filed cross-mo-
tions for summary judgment. On June 30, 1992, the district court
granted Respondents’ cross-motions for summary judgment, and
issued a published memorandum opinion expressing the district
court’s conclusion that the Wright Amendment did not offend
the Constitution. In reaching its conclusion, the district court ex-
pressly relied upon a decision by the United States Court of Ap-
peals for the Fifth Circuit which had been issued on May 6, 1991
(i.e., during the pendency of Petitioners’ motion for summary
judgment).* On July 10, 1992, Petitioners timely perfected their
appeal to the court of appeals.
7 Respondents, United States of America, Federico Pend (as Secretary of the
United States Department of Transportation), United States Department of
Transportation, John V. Coleinan (as Director of the Office of Aviation Analysis),
and the Office of Aviation Analysis, may be hereinafter referred to collectively
as the “National Government.”
* Respondents, Dallas/Fort Worth International Airport Board (hereinafter
the “D/FW Board”), and American Airlines, Inc. (hereinafter “American”), in-
tervened as defendants in the district court.
® Cramer v. Skinner, et al., 931 F.2d 1020, certiorari denied, _____ US.
. 112 S.Ct. 298; (1991), affirmed following remand, sub nom. Cramer v.
Card, 983 F.2d 232 (Table), certiorari denied, sub nom. Cramer v. Peria,_—
US. __; 113 S.Ct. 2994 (1993).
8
3. On February 18, 1994, the court of appeals issued its opin-
ion in this matter. App., infra, la-15a. As reflected therein, the
court of appeals considered and rejected each of Petitioners’ con-
stitutional challenges to the Wright Amendment.
REASONS FOR GRANTING THE PETITION
I. SPECIAL CONSIDERATION OF PETITIONS FOR
CERTIORARI IN ORIGINAL JURISDICTION CASES
While the Framers intended that the powers of the national
government be supreme, they also intended that the powers of
the national government be strictly limited to those delegated
within the Constitution. See U.S. Constitution, at Article VI, and
Amendment X. One of the broadest grants of power to the na-
tional government is that effected by the Commerce Clause (Ar-
ticle 1, Section 8, Clause 3). As discussed infra, the Port Pref-
erence Clause (Article 1, Section 9, Clause 6), effects an express
limitation on the national government’s commerce power, in-
tended to protect smaller and less powerful States from discrim-
ination at the hands of States more powerful in the Congress.
As described in Petitioners’ Statement, supra, the Wright
Amendment effects a limited air blockade against the State of
Kansas by isolating Kansas from Love Field, an airport of tre-
mendous economic importance in the Southwestern United
States. As Governor Finney testified, “. . . the Wright Amend-
ment’s isolation of the ports of Kansas, including, inter alia, the
Port at Wichita, adversely affects the size and wealth of the econ-
omy of Kansas . . .” (See Decl. of the Hon. Joan Finney, etc.,
filed April 23, 1991, at ¢ 10.) As nationally-renowned economist
Dr. Alfred E. Kahn testified, removal of the Wright Amendment
would “. . . confer substantial benefit upon the economy of Kan-
sas and other states that lie beyond the Restricted Borders . . .
(See Decl. of Dr. Alfred E. Kahn, etc., filed July 22, 1991, at {
8.c.)
Notwithstanding the economic importance of this case, its
greater significance derives from the fact that the Wright Amend-
9
ment is an affront to the fundamental principle that all of the
States are co-equal under the Constitution. It was in recognition
of this principle that Congress acted to admit Kansas into the
Union “. . . on an equal footing with the original states in all
respects whatever.” See Act of Jan. 29, 1861, 12 Stat. 126.
The Framers understood that conflicts among the several States
(and between one or more States and the national government)
would have inherent potential to threaten the cohesiveness of the
Union. The Framers sought to ensure stability by conferring orig-
inal jurisdiction upon this Court to resolve such conflicts. See U.S.
Constitution, at Article III, Section 2, Clause 2. Thus, it can be
said that the Framers intended that this Court would always pro-
vide a forum for the just resolution of conflicts among the several
States (and between one or more States and the national gov-
ernment).
The State of Kansas is fully cognizant that this Court’s caseload
is enormous, and that its resources are finite. Accordingly, out of
deference to this Court, Kansas elected not to seek to invoke this
Court’s original jurisdiction. Now, however, this Court has be-
come the forum of last resort to determine constitutional ques-
tions whose resolution is of great importance not only to Kansas,
but to the nation as a whole. Kansas respectfully submits that this
Court should afford special consideration to petitions for certiorari
in cases such as the instant case which are within this Court's
original jurisdiction, and which present important constitutional
issues defining the relationship between the national government
and the States. By affording such special consideration, this Court
would advance the interests which the original jurisdictional grant
of Article III was intended to serve.
Il. PORT PREFERENCE CLAUSE
The Port Preference Clause provides:
“No Preference shall be given by any Regulation of Com-
merce or Revenue to Ports of one State over those of an-
10
other: nor shall Vessels bound to, or from, one State be
obliged to enter, clear, or pay duties in another.”
It has been forty-three years since this Court last considered
the Port Preference Clause.’ During the first three decades of
this Court’s silence, the lower courts were also virtually silent.
See City of Houston v. Federal Aviation Administration, 679 F 2d
1184, 1196 (5th Cir. 1982). (Noting that “[dJecisions interpreting
the [Port Preference] [C]lause are .. . few and far be-
tween . . .”) During the past decade, however, there has been
a relative explosion of Port Preference Clause litigation in the
lower courts. See e.g., City of Houston; see also City of Milwau-
kee, et al. v. Block, et al., 823 F.2d 1158 (7th Cir. 1987) and,
following remand, City of Milwaukee, et al. v. Yeutter, et al., 877
F.2d 540 (7th Cir. 1989), certiorari denied, 493 U.S. 976 (1989):
see also State of Nevada, et al. v. Watkins, 914 F.2d 1545, 1557
(9th Cir. 1990), certiorari denied, 499 U.S. 906 (1991).
The Port Preference Clause is comprised of two distinct sub-
clauses, separated by a colon." See State of Pennsylvania v.
Wheeling and Belmont Bridge Co., et al., 18 Howard 421, 435
(1856). (“[T]he rights of the States were secured, by the exemp-
tion of vessels from the necessity of entering or paying duties in
the ports of any State other than that to which they were
bound . . . And, also, by the provision that no preference should
be given, by any regulation of commerce or revenue, to the ports
of one State over those of another.” [Emphasis added.]}) As dis-
Petitioners’ research has revealed only one reference by this Court to the
Port Preference Clause after its October Term, '950. See United States v. Pta-
synski, et al., 462 U.S. 74, 80 n.10 (1983).
“ Petitioners shall hereinafter refer to the first sub-clause (i¢., “No Pref-
erence shall be given by any Regulation of Commerce or Revenue to Ports of
one State over those of another . . .”) as the Preferential Regulation Sub-clause;
Petitioners shall hereinafter refer to the second sub-clause (ie.,“. . . nor shall
Vessels bound to, or from, one State be obliged to enter, clear, or pay duties
in another”) as the Enter or Clear Sub-clause.
1]
cussed infra, Petitioners contend that the Wright Amendment
contravenes both sub-clauses of the Port Preference Clause.
A. Preferential Regulation Sub-clause
Decisions rendered by this Court in cases in which it was ar-
gued that a regulation of commerce impermissibly preferred the
ports of one state over those of another (i.e., cases implicating
the Preferential Regulation Sub-clause) establish the general rule
that. in order to contravene the Preferential Regulation Sub-
clause of the Port Preference Clause, a regulation of commerce
must effect
_ a direct privilege or preference of the ports of any
particular State over those of another . . . [Thus, the Port
Preference Clause forbids] not discrimination between in-
dividual ports within the same or different States, but dis-
crimination between States . . .”
State of Pennsylvania v. Wheeling, supra, at 435. See also Ala-
bama Great Southern R.R v. United States, 340 U.S. 216, 229
(1951), quoting Louisiana Public Service Commission, et al. v.
Texas & New Orleans R.R., 284 U.S. 125, 131 (1931). (The Port
Preference Clause “prevent[s] preference as between States in
respect of their ports or the entry and clearance of vessels. It
does not forbid such discriminations as between ports.”) This
Court has held that the Port Preference Clause does not prohibit
acts of Congress which provide a special advantage to the port
or ports of one state (e.g., acts authorizing, “improvement of rivers
and harbors, the erection of light-houses, and other facilities of
commerce”), where such acts “incidentally operate to the prej-
udice of the ports in a neighboring State.” State of Pennsylvania
v. Wheeling, supra, at 433. (Emphasis added.) See also State of
South Carolina v. State of Georgia, et al., 3 Otto 4, 12-13 (1876).
(An act of Congress providing for the improvement of the harbor
at Savannah, Georgia by the diversion of water from the northern
branch to the southern branch of the Savannah River did not
offend the provision, “that no preference shall be given by any
12
regulation of commerce or revenue to the ports of one State over
those of another.” [J.e., the Preferential Regulation Sub-clause. })
Facially neutral acts of Congress which have disparate effects
upon the ports of different states based upon the realities of ge-
ography do not offend the Port Preference Clause. See Armour
Packing Company v. United States, 209 U.S. 56, 80 (1908). (Hold-
ing that an act of Congress which confers an advantage upon
barge shipping as opposed to rail shipping does not impermissibly
prefer states whose ports have the “natural advantage” of being
accessible by inland navigation over those states whose ports are
not accessible by inland navigation.)
In rejecting Petitioners’ argument that the Wright Amendment
offends the Preferential Regulation Sub-clause, the court of ap-
peals reasoned:
. . . We cannot quite conclude . . . that the words [of the
Preferential Regulation Sub-clause] do not literally cover this
situation. Still, the Wright Amendment is clearly not de-
signed to provide a preference to ports of one state over
another; it was drafted to protect DFW, one Texas airport,
from competition from Love Field, another Texas airport
(and to [sic] airline carriers who fly into DFW from com-
petition from Southwest Airlines). Such a preference is of
no concern to the Port Preference Ciause which is designed
to protect states, not individual ports. [Citation omit-
re
. we cannot say there is no benefit afforded those air-
ports [located in the Enumerated States] . . . The pref-
erence, such as it is, however, is rather insignificant — cer-
tainly as compared to the very substantial and undeniably
legal preference bestowed on DFW as against Love
Field. . . . [T]he Wright Amendment speaks directly to a
port preference, but it is certainly true that Congress’ ob-
vious purpose and the primary impact of the Amendment
is to favor DFW over Love Field, not to favor airports in
the [Enumerated States] over those in the [Unenumerated
j
}
13
States]. Under these circumstances, we do not believe the
Port Preference Clause is offended.”
App., infra, 8a-9a. There are at least two fundamental flaws in
the reasoning of the court of appeals. First, the court of appeals
assumes that Congress’ purpose in enacting the Wright Amend-
ment is relevant. Petitioners strongly disagree. As this Court has
written, the Port Preference Clause effects an express “limitation
on the National Government’s commerce power”. United States
v. Ptasynski, et al., 462 U.S. 74, 80 n.i0 (1983). Lack of animus
toward Kansas cannot confer upon Congress the power to act
ultra vires of the Constitution. Second, the court of appeals as-
sumes that, so long as the “primary impact” of the Wright Amend-
ment is not discrimination between states, it does not offend the
Port Preference Clause. Restated, the court of appeals has held
that the Wright Amendment's lawful discrimination between ports
is somehow curative of the Wright Amendment’s otherwise un-
lawful discrimination in favor of the Enumerated States over the
Unenumerated States.
The holding of the court of appeals is in conflict with the prior
decisions of this Court. First, the Wright Amendment discrimi-
nates between states by establishing a direct preference for the
ports of the Enumerated States over those of the Unenumerated
States. Second, the Wright Amendment is not facially neutral,
because the Wright Amendment expressly prefers the named,
Enumerated States, over the Unenumerated States. Third, as the
court of appeals appears to have recognized, the Wright Amend-
ment’s detrimental effect upon the ports of the Unenumerated
States is not merely an “incidental advantage[] . . . resulting]
from the legislation of Congress upon other subjects . . .” (See
App., infra, 9a, quoting State of Pennsylvania v. Wheeling, supra. )
Instead, the Wright Amendment's primary mechanism is to re-
strict passenger air service to the Unenumerated States. Finally,
as the court of appeals appears to have recognized (see App.,
infra, 9a n.4) the Wright Amendment's discrimination against the
Unenumerated States is no accident of geography, but a calcu-
14
lated erection of the political frontiers of member states of the
United States as actual barriers to interstate travel. (Thus, under
the regime of the Wright Amendment, a Love Field Passenger
may travel without restriction to such far-away places as E] Paso,
Texas and Albuquerque, New Mexico, but may not travel freely
to nearby Wichita, Kansas or Kansas City, Missouri, simply be-
cause these cities lie beyond the Restricted Borders.)
Because this Court has not considered the Port Preference
Clause in forty-three years, this Court has had no occasion to
address the Port Preference Clause in the context of aviation.
Petitioners believe the application of the Port Preference Clause
in the context of aviation presents important questions of federal
law which have not been, but should be, s2ttled by this Court.
Additionally, for the reasons discussed above, Petitioners submit
that the court of appeals has decided the question whether the
Wright Amendment is repugnant to the Preferential Regulation
Sub-clause in a manner which conflicts with the decisions of this
Court.
B. Enter or Clear Sub-clause
In contrast to the Preferential Regulation Sub-clause (which
constitutes only a “general prohibition of preferences” in regu-
lation of commerce or revenue), the Enter or Clear Sub-clause
effects an “explicit ban” on obligations to enter or clear a port
of a state other than that to which a vessel is bound. City of
Milwaukee v. Yeutter, supra, at 546. Petitioners’ research has not
revealed any decision of this Court which appears to apply the
Enter or Clear Sub-clause. Restated, all decisions of this Court
which Petitioners have found relating to the Port Preference
Clause involved alleged preferences in the regulation of com-
merce, and none has involved a statute or regulation which pur-
portedly obligated vessels bound to or from one state to enter
the port of another. (In fact, Petitioners’ research has revealed
no prior statute or regulation which has expressly purported to
require a vessel to enter a port of one state, prior to entering the
state of its destination.)
15
Petitioners believe the Wright Amendment is the first federal
statute or regulation to implicate the explicit ban contained in the
Enter or Clear Sub-clause. The Wright Amendment contravenes
the Enter or Clear Sub-clause by requiring that passenger aircraft
bound from Love Field to points beyond the Restricted Borders
“enter” (i.e., land at) a port within an Enumerated State, before
entering a port of an Unenumerated State. For example, pas-
senger aircraft bound from Love Field to Kansas must land at an
airport within Texas (or one of the other Enumerated States) be-
fore entering Kansas. Of course, landing (i.e., “entry”) at an air-
port by passenger aircraft requires “clearance” to land, and re-
quires payment of landing fees (i.e., “duties”) to the operator of
the airport (which, in most cases, is an instrumentality of the state
in which the airport is situated).
The court of appeals rejected Petitioners’ contention that the
Wright Amendment contravenes the Enter or Clear Sub-clause
on two grounds. First, the court of appeals accepted as “probably
correct” the National Government’s argument that the terms,
“enter” and “clear”, as employed in the Port Preference Clause
. are technical terms that refer to imported goods
. used in the traditional commercial sense of clearing
customs.”
App., infra, 7a. Second, the court of appeals held that,
“. . . whatever the precise meaning of the terms ‘enter’ and
‘clear, . . . ” the language of the Enter or Clear Sub-clause
“. . . literally does not apply to the Wright Amendment be-
cause it cannot be said that a ‘vessel bound to or from one
state [is] obliged to enter . . . in another.”
App., infra, 7a.
As to the first conclusion of the court of appeals, Petitioners
would note that the Enter or Clear Sub-clause is written in the
disjunctive. Thus, an otherwise impermissible requirement of en-
try, or clearance, or payment of duties, will contravene the Enter
or Clear Sub-clause even if standing alone. Petitioners submit that
16
the court of appeals’ restrictive reading of the Enter or Clear Sub-
clause to include only “clearing customs” is irreconcilable with
the raison d’etre of the Port Preference Clause which, in part,
was to fuse the several States into a single nation. See Passenger
Cases, 48 U.S. (7 How.) 283, 492; 12 L.Ed. 702 (1849) (Taney,
J., dissenting). (“[Inter alia,] the provision that vessels bound to
cr from one State to another shall not be obliged to enter and
clear or pay duties . . . prove[s] that [the Constitution] intended
to secure the freest intercourse between the citizens of the dif-
ferent States.”)
The second conclusion of the court of appeals (i.e., that “it
cannot be said that a ‘vessel bound to or from one state [is]
obliged to enter . . . in another’”; see App., infra, 7a) is ay-
parently the product of a misunderstanding of the operation and
effect of the Wright Amendment. Because the Wright Amend-
ment isolates one airport from points beyond the Restricted Bor-
ders, its effects are not symmetrical. That is to say,.the Wright
Amendment operates differently upon aircraft bound from Love
Field to a point beyond the Restricted Borders (e.g., Kansas) than
it operates upon aircraft bound to Love Field from a point beyond
the Restricted Borders. The court of appeals considered only the
latter alternative:
. . nothing in the Amendment prevents a plane leaving
a non-service area state from traveling directly to anywhere
else in Texas before continuing on to Love Field. As such,
the language of the second part of the Clause literally does
not apply to the Wright Amendment because it cannot be
said that a ‘vessel bound to or from one state [is] obliged
to enter . . . in another.’”
App., infra, 7a. When an aircraft leaves Love Field for a point
in Kansas, however, that aircraft may not cross the Restricted
Borders into Kansas without first entering a port of another state
(i.e., a state other than the destination-state of Kansas). Petitioners
submit that the mere fact that the Intermediate Airport may be
within the origin-state of Texas is irrelevant to the constitutional
17
inquiry at hand. The constitutional inquiry is whether an aircraft
must first enter a port of a state other than the state which is its
destination. See State of Pennsylvania v. Wheeling, supra, at 435.
(“[T]he rights of the States were secured, by the exemption of
vessels from the necessity of entering or paying duties in the ports
of any State other than that to which they were bound... ”
[Emphasis added.]) Further, insofar as Love Field is in Northern
Texas, it strains logic to assume that a restriction in contravention
with the literal terms of the Port Preference Clause may somehow
be cured by the mere fact that aircraft which first fly south to
Austin, Houston, or San Antonio (and land there) are then free
to cross the Restricted Borders into Kansas.
Petitioners believe the questions presented by this case in re-
lation to the Enter or Clear Sub-clause would be questions of
first impression in this Court. Petitioners submit that such ques-
tions are important questions of federal law which have not been,
but should be, settled by this Court.
Ill. RESTRICTIONS UPON SPEECH
As noted above, the Wright Amendment prohibits publication
by airlines and travel agents of, inter alia, advertisements and
connecting flight schedules respecting otherwise lawful double-
ticketed travel between Love Field and points beyond the Re-
stricted Borders.
A. Level of Scrutiny
Content regulation of ordinary commercial speech must be
scrutinized in accordance with this Court’s decision in Central
Hudson Gas & Electric Corporation v. Public Service Commission
of New York, 447 U.S. 557 (1980). In the case at bar, Petitioners
sought to have a higher level of scrutiny applied to the Wright
Amendment's content regulation of protected commercial speech
on the ground that such regulation applies only to speech which
facilitates a constitutionally protected activity (i.e., interstate travel.
across the Restricted Borders). (Petitioners view the Wright
Amendment as analogous to a statute which prohibits taxi-cab
18
companies from advertising cab rides to the polls on election day,
while allowing taxi-cab companies to advertise other services not
related to facilitating voting.) In seeking application of heightened
scrutiny, Petitioners relied upon Posadas de Puerto Rico Asso-
ciates v. Tourism Company of Puerto Rico, 478 U.S. 328, 345
(1986), in which this Court recognized the “crucial distinction”
between cases involving content regulation of ordinary commer-
cial speech and those cases in which “the underlying conduct that
was the subject of the advertising restrictions was constitutionally
protected . . .” In such cases, this Court has implicitly applied
a level of scrutiny higher than that applied in cases involving or-
dinary commercial speech. See Carey, etc., et al., v. Population
Services International, et a)., 431 U.S. 678, 701 (1977) (noting
that the information suppressed by the statute there at issue “re-
lated to activity with which, at least in some respects, the State
could not interfere.” [quoting Virginia State Board of Pharmacy
v. Virginia Citizens Consumer Council, Inc., 425 US. 748, 760
(1976)]). See also Bigelow v. Virginia, 421 U.S. 809, 822 (1975)
(noting that the “activity advertised pertained to constitutional
interests’).
The court of appeals declined to apply heightened scrutiny in
the instant case, reasoning that, because (in the court of appeals’
view) the Wright Amendment’s restrictions on interstate move-
ment were not unconstitutional, “the advertising restrictions do
not impinge on a constitutionally protected activity.” App., infra,
13a n.6. Petitioners submit that the question whether the Wright
Amendment's restrictions upon interstate movement are consti-
tutional is wholly distinct from the question whether the Wright
Amendment's content regulation of protected commercial speech
should be subjected to heightened scrutiny. (See Carey, supra,
analyzing restrictions upon distribution of contraceptives sepa-
rately from proscription against advertisement of contraceptives.)
Petitioners have found no opinion of this Court which expressly
prescribes the level of scrutiny to be applied to a federal law
regulating the content of commercial speech relating to a con-
stitutionally protected activity. If Bigelow and Carey control, the
19
court of appeals has decided a federal question in a manner which
conflicts with applicable decisions of this Court; if Bigelow and
Carey do not control, this case presents an important question
of federal law which has not been, but should be, settled by this
Court.
B. The Court of Appeals Erred in its Application of the Central
Hudson Criteria
This Court has held that the content of ordinary commercial
speech
“may be restricted only if the government's interest in doing
so is substantial, the restrictions directly advance the gov-
ernment’s asserted interest, and the restrictions are no more
extensive than necessary to serve that interest.”
Posadas, supra, at 340, citing Central Hudson, supra, at 566. As-
suming, arguendo, the Central Hudson inquiry is applicable to
the Wright Amendment’s content regulation of protected com-
mercial speech, the court of appeals failed to conduct such inquiry
in a manner consistent with the holdings of this Court.
1. Substantial Interest Criterion
The court of appeals found the substantial interest inquiry “per-
plexing”, observing that this Court’s prior decisions offer “little
insight as to what criteria [this] Court used to reach its conclu-
sion|s].” App., infra, 14a. The court of appeals characterized the
government's interest as “ensuring adequate facilities for inter-
state air travel”, and concluded that the substantiality of such in-
terest was “impossible to question”. App., infra, 15a.
This Court has held that the substantial interest inquiry “in-
volves an assessment of the strength of the government's interest
in restricting the speech.” Posadas, supra, at 341. (Emphasis
added.) Of course, it is the proponent of the challenged content
regulation (i.e., the National Government) which must carry the
“. . . heavy burden of justifying a categorical prohibition against
the dissemination of accurate factual information to the public.”
20
Peel v. Attorney Registration and Disciplinary Commission of Il-
linois, 496 U.S. 91, 109 (1990). (Emphasis added.)
In the case at bar, the National Government proffered no ev-
idence which might justify the Wright Amendment's content reg-
ulation of speech. The court of appeals responded to this absence
of evidence by simply identifying the government’s asserted in-
terest in the Wright Amendment as a whole, and refusing to con-
sider whether the government ever had any identifiable interest
in regulating the content of speech. See App., infra, 15a.
Notably, the court of appeals assumed, sub silentio, that if the
National Government had had a substantial interest in restricting
speech at the time the Wright Amendment was enacted, the sub-
stantial interest criterion would be established in perpetuity. This
assumption seems particularly inappropriate in the case at bar,
because the National Government recently issued a report to
Congress (hereinafter the “Secret Report”) in which it admitted:
“A change to the Wright Amendment will result in more
service, more competition, lower fares, and more traffic for
the Dallas-Fort Worth Metroplex and the region. Travellers
to or from the Metroplex region will save an estimated $183
million per year in air fares. . . . Under all possible sce-
narios, Dallas-Fort Worth Airport will continue to grow and
remain the region’s dominant airport.”
(Emphasis added.) Petitioners submit that the government's in-
terest in content-regulation of speech should be measured, not
at the time the regulation is enacted, but at the time the regu-
lation is challenged. By analogy, a war-time statute prescribing
internment of persons of enemy alien ancestry might well be nec-
2 The National Government refused to produce the Secret Report during
discovery, vigorously asserting executive privilege until the very day the district
court entered judgment. As soon as Petitioners perfected their appeal to the
court of appeals, the National Government's asserted need for secrecy evapo-
rated, and the Secret Report was released to Congress and the public. Petitioners
requested that the court of appeals take judicial notice of the Secret Report,
which it refused to do. See App., infra, 16a.
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21
essary to advance the compelling governmental interest of na-
tional security at the time of its enactment; however no-one would
suggest that such a statute could remain enforceable after the
cessation of hostilities (i.e., after the compelling interest has ter-
minated). Similarly, where an assertedly substantial interest in
regulating the content of speech has admittedly terminated, the
content-regulation should not be permitted to continue in per-
petuity.
Petitioners would note that — although the government's as-
sertedly substantial interest in regulating the content of speech
through the Wright Amendment has admittedly terminated —
concerted efforts by Kansas to repeal the Wright Amendment in
each of the last three Congresses have been unsuccessful. Peti-
tioners believe the Wright Amendment’s content regulation of
speech actually operates as an anti-repeal clause by keeping mem-
bers of the travelling public (i.e., voters) ignorant of the
$183,000,000.00 annual cost which the Wright Ameudment im-
poses upon them; this, in turn, insulates members of Congress
from public pressure for repeal. Petitioners are confident the air-
lines who actually receive the $183,000,000.00 per year in arti-
ficially inflated air fares have no difficulty in assessing their own
economic interests in the Wright Amendment and ensuring that
their preferences are known in Congress.
Petitioners submit that, in failing to require the National Gov-
ernment to establish an extant, substantial interest in regulating
the content of speech, the court of appeals has decided a federal
question in a way that conflicts with applicable decisions of this
Court.
2. Direct Advancement Criterion
The court of appeals found the direct advancement criterion
“rather obviously satisfied in this case.” App., infra, 13a. The court
of appeals concluded that the Wright Amendment's content-reg-
ulation of speech “reduce[s] the demand for Love Field and
thereby strengthen[s} DFW.” Ibid. Petitioners submit that the
case at bar is distinguishable from those cases in which this Court
22
found that content regulation of protected commercial speech di-
rectly advanced governmental interests by effecting reduction in
demand. For example, it is axiomatic that reduction of demand
for electricity will directly advance conservation thereof. (Central
Hudson.) In Posadas, “reduction of demand” was the govern-
ment’s interest. Petitioners submit that reducing demand for law-
ful interstate travel between Love Field and points beyond the
Restricted Borders does not directly advance any asserted interest
of the National Government.
Content regulation of protected commercial speech will not
satisfy the direct advancement criterion where “it provides only
ineffective or remote support for the government’s purpose.”
Central Hudson, supra, at 564. See, e.g., Id., at 569. Petitioners
submit that any strengthening of D/FW which may result from
the Wright Amendment's content-regulation of speech does not
constitute direct advancement of the government's asserted in-
terest in “ensuring adequate facilities for interstate air travel”.
Further, it was the National Government which bore the “heavy
burden” to establish the direct advancement criterion. Peel, supra,
at 109. The National Government proffered no evidence in sup-
port of its contention that the Wright Amendment's content-reg-
ulation of speech directly advanced the National Government's
asserted interest. To the contrary, the National Government’s own
Secret Report would seem to contradict any such contention.
In concluding that the Wright Amendment's content-regulation
of protected commercial speech directly advances the asserted
interest of the National Government, the court of appeals has
decided a federal question in a manner which conflicts with the
decisions of this Court in Central Hudson and Posadas.
3. Reasonable Fit Criterion
In Board of Trustees of the State University of New York v.
Fox, 492 U.S. 469 (1989), this Court held that content regulation
of protected commercial speech is “no more extensive than nec-
essary” to serve the governmental interest at issue where there
is a reasonable fit between the objective of the legislature which
RAN AS CaN AR TORN RRA E IR WHEE AIO SG NOEL RI ee TODA eae ot Wd he ey
23
enacted the regulation and the means employed to achieve that
objective. Board of Trustees, at 480. A “reasonable fit” requires
that the regulation at issue “employs not necessarily the least re-
strictive means but . . . a means narrowly tailored to achieve the
desired objective.” Id., at 480.
The court of appeals found the reasonable fit criterion was also
“rather obviously satisfied in this case.” App., infra, 13a. However,
the court of appeals failed to consider the availability of alternative
means of advancing the National Government's asserted interest.
The court of appeals also failed to consider whether the Wright
Amendment's restrictions on interstate travel are sufficient in and
of themselves (i.e., without the speech restrictions) to advance
the National Government's asserted interest.
In concluding that the Wright Amendment's content regulation
of protected commercial speech satisfies the final Central Hudson
criterion, the court of appeals has decided a federal question in
a manner which conflicts with applicable decisions of this Court,
including, inter alia, the decision rendered in Board of Trustees.
IV. INTERSTATE TRAVEL
This Court has long held that the right to travel interstate is
constitutionally protected. See e.g., Passenger Cases, supra, at 492
(1849) (Taney, J., dissenting) (“[C]itizens of the United
States . . . must have the right to pass and repass through every
part of it without interruption . . .”); Crandall v. Nevada, 6 Wal-
lace 35, 47 (1867) (“[T]he right of passing through a State by a
citizen of the United States is one guaranteed to him by the Con-
stitution . . .”); Paul v. Virginia, 8 Wallace 168, 180 (1869)
(“. . . the citizens of each State [have] . . . the right of free in-
gress into other States, and egress from them . . .”); Ward v.
Maryland, 12 Wallace 418, 430 (1871) (Article IV, § 2“. . . se-
cures and protects the right of a citizen of one state to pass into
any other state of the Union for [any lawful] purpose . . .”);
Twining v. New Jersey, 211 U.S. 78, 97 (1908) (“[A]mong the
rights and privileges of national citizenship recognized by this
Court are the right to pass freely from state to state.”); United
24
States v. Guest, 383 U.S. 745, 759 n.17 (1966) (“[T]he consti-
tutional right of interstate travel is a right secured against inter-
ference from any source whatever, whether governmental or pri-
vate.”); Shapiro v. Thompson, 394 U.S. 618, 629 (1969) (“[T]he
nature of our Federal Union and our constitutional concepts of
personal liberty unite to require that all citizens be free to travel
[interstate] . . .”); Griffin v. Breckenridge, 403 U.S. 88, 105
(1971) (“. . . the right of interstate travel is constitutionally pro-
tected . . .”). See also Dunn v. Blumenstein, 405 U.S. 330 (1972):
Austin v. New Hampshire, 420 U.S. 656 (1975); Califano v. Az-
navorian, 439 U.S. 170 (1978); Jones v. Helms, 452 U.S. 412
(1981); Zobel v. Williams, 457 U.S. 55 (1982); Attorney General
of New York v. Soto-Lopez, 476 U.S. 898 (1986).
This Court has declared that the right to travel interstate is
“fundamental”. Attorney General of New York, supra, at 906 n.6;
see also Jones, supra, at 418; United States v. Guest, supra, at
757; Shapiro, supra, at 638. The right to travel interstate is “ba-
sic”. Attorney General of New York, at 901-902 (quoting Dunn,
supra, at 338, quoting United States v. Guest, at 758). The right
to interstate travel is an “unconditional personal right.” Dunn, at
341, quoting Shapiro, at 643 (Stewart, j., concurring). (Emphasis
supplied by the Court in Dunn.) “The constitutional right of in-
terstate travel is virtually unqualified.” Haig v. Agee, 453 U.S. 280,
307 (1981), quoting Califano, supra, at 176, quoting United States
v. Guest, at 757-758.
This Court has held that the right to travel includes both the
right of ingress to and egress from the states, and the right to
migrate. Decisions of this Court involving the right of ingress and
egress include, inter alia, Crandall, Paul, Ward, Twining, United
States v. Guest, and Griffin, supra. Decisions of this Court in-
volving the right to migrate include, inter alia, Shapiro, Dunn,
Zobel, and Attorney General of New York, supra.
This Court's decisions in the right to migrate cases have prin-
cipally involved state laws which have imposed only indirect bur-
dens upon the exercise of the right to migrate, through classifi-
cation of residents according to duration of residency. Attorney
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25
General of New York, supra, at 903. Where such laws have sur-
vived rational basis scrutiny, this Court has applied equal pro-
tection analysis, and has “. . . required the States to come for-
ward with a compelling justification.” Id., at 904. Petitioners have
found only one such case involving a federal statute. In that case,
Shapiro, supra, this Court applied an analysis under the Fifth
Amendment similar to that applied to state laws under the Equal
Protection Clause, and required that the federal statute be jus-
tified by a compelling interest. Shapirv, at 642. See also Id., at
644:
“[a statute which] impinges upon the constitutional right of
interstate travel must be shown to reflect a compelling gov-
ernmental interest. This is necessarily true [when] the im-
pinging law [is] . . . a federal regulatory clause, to be tested
against the Due Process Clause of the . . . Fifth Amend-
ment.”
(Stewart, J., concurring.)
In the case at bar, Petitioners seek compelling interest scrutiny
of the Wright Amendment, under Shapiro. The Wright Amend-
ment classifies persons at Intermediate Airports as either Love
Field Passengers or non-Love Field Passengers. Outbound Love
Field Passengers are not permitted to board certain flights which
shall traverse the Restricted Borders, while all others are free to
board such flights. Inbound Love Field Passengers are not per-
mitted to board certain flights bound for Love Field solely by
reason of their having recently traversed the Restricted Borders,
while all others are free to board such flights.
In determining that the Wright Amendment does not imper-
missibly abridge interstate travel rights, the court of appeals failed
to require the National Government to come forward with a com-
pelling justification for the Wright Amendment. The court of ap-
peals relied upon the observations of Justice O’Connor in her
dissent in Attorney General of New York, in which
26
“the plurality ‘implicitly recognize[d] . . . [that] something
more than a negligible or minimal impact on the right to
travel is required before strict scrutiny is applied.’ 476 U.S.
at 921. We think in this case that appellants’ claim does not
reach that threshold, and the impact of the Wright Amend-
ment on interstate travel — even air travel to and from the
Dallas-Fort Worth area — is negligible.
“. . . The only relevant question is whether the Wright
Amendment can be thought to deter interstate air travel to
or from Dallas merely because Love Field is somewhat
closer to Dallas than is DFW. . . . In short, we think the
Amendment's interference with interstate travel to and from
Texas or, to and from the Dallas-Fort Worth area, or even
air travel to or from Dallas alone is trivial.”
App., infra, 1la-12a. Petitioners believe the court of appeals erred
in assuming that Justice O’Connor’s observations in Attorney Gen-
eral of New York would be applicable in a case such as the instant
case, in which a direct burden is imposed upon the right of ingress
to and egress from the states. As the court of appeals noted, the
federal courts have seldom encountered either federal or state
laws which directly burden the right of ingress to and egress from
the states. App., infra, 10a.
Petitioners believe the court of appeals also erred in analyzing
the burden imposed by the Wright Amendment upon interstate
travel as a whole, rather than considering the impact of the Wright
Amendment upon Love Field Passengers at Intermediate Airports
who are denied access to flights accessible to all others. It is this
restriction upon the movements of people (as opposed to aircraft)
which Petitioners believe makes the Wright Amendment unique.
Petitioners have found no opinion of this Court which expressly
prescribes the level of scrutiny to be applied to a federal law
which burdens the right of ingress and egress. If Shapiro controls,
the court of appeals has decided a federal question in a manner
which conflicts with applicable decisions of this Court; if Shapiro
BR WS a.
Dek trates
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Dyas are. 2 Scr Shoal ag ae
27
does not control, this case presents an important question of fed-
eral law which has not been, but should be, settled by this Court.“
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
June 1994
Robert T. Stephan
Attorney General, State of Kansas
Counsel of Record
John W. Campbell
Deputy Attorney General,
State of Kansas
Kansas Judicial Center
Second Floor
Topeka, Kansas 66612-1597
Telephone: (913) 296-2215
Counsel for Petitioner,
State of Kansas
David J. Gallo,
Special Assistant Attorney General,
State of Kansas,
8910 University Center Lane
Suite 500
San Diego, California 92122-1085
Telephone: (619) 457-8690
Counsel for all Petitioners
3 This case may also raise the question whether the implied right of ingress
and egress derived from the Privilezes and Immunities Clause of Article IV (see
Zobel, supra, at 80 [O’Connor, J., concurring]) provides immunity against in-
terference by the National Government.
APPENDIX A
UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT
AK 5 ah Sale Se ROE ON a a SS
No. 92-5259
STATE OF Kansas, et al.,
Appellants
v.
UNITED STATES OF AMERICA, et all.
Argued November 23, 1993
Decided February 18, 1994
Before: EDWARDS and SILBERMAN, Circuit Judges,
and JAMES L. OAKES,* Senior Circuit Judge, United
States Court of Appeals for the Second Circuit.
Opinion for the Court filed by Circuit Judge
SILBERMAN.
SILBERMAN, Circuit Judge: Appellants, who have
brought a three-pronged constitutional challenge to the
Wright Amendment, claiming that it violates the Port
Preference Clause and the First Amendment, and inter-
feres with their right to interstate travel, appeal the Dis-
(la)
alibi erwectvsinss hii udetpan.
2a
trict Court’s grant of Summary Judgment on behalf of
the government. We affirm.
I.
The Wright Amendment, section 29 of the International Air
Transportation Competition Act of 1979 (the International
Competition Act), Pub.L. No. 96-192, 94 Stat. 35, 48-49
(1980), restricts air traffic from Love Field, an airport located
* Sitting by designation pursuant to 28 U.S.C. § 294(d) (1988).
' The Amendment, which is not published in the U.S. Code,
reads as follows:
SEC. 29. (a) Except as provided in subsection (c), notwithstanding
any other provision of law, neither the Secretary of Transportation,
the Civil Aeronautics Board, nor any other officer or employee
of the United States shall issue, reissue, amend, revise, of oth-
erwise modify (either by action or inaction) any certificate or other
authority to permit or otherwise authorize any person to provide
the transportation of individuals, by air, as a common carrier for
compensation or hire between Love Field, Texas, and one or
more points outside the State of Texas, except (1) charter air -
transportation not to exceed ten flights per month, and (2) air
transportation provided by commuter airlines operating aircraft
with a passenger capacity of 56 passengers or less.
(b) Except as provided in subsections (a) and (c), notwithstanding
any other provision of law, or any certificate or other authority
heretofore or hereafter issued thereunder, no person shall provide .
or offer to provide the transportation of individuals, by air, for
compensation or hire as a common carrier between Love Field,
Texas, and one or more points outside the State of Texas, except
that a person providing service to-a point outside of Texas from
Love Field on November 1, 1979, may continue to provide service
to such point.
(c) Subsections (a) and (b) shall not apply with respect to, and
it is found consistent with the public convenience and necessity
to authorize, transportation of individuals, by air, on a flight be-
tween Love Field, Texas, and one or more points within the
States of Louisiana, Arkansas, Oklahoma, New Mexico, and Texas
by an air carrier, if (1) such air carrier does not offer or provide
any through service or ticketing with another air carrier or foreign
Bereta dni
3a
in the Dallas-Fort Worth area. Congress enacted the Amenc-
ment because it hoped to support “a fair and equitable set-
tlement for a dispute that has raged in the Dallas/Fort Worth
area for many years.” H.R. CONF. REP. NO. 716, 96th
Cong., Ist Sess. 24 (1979).
Prior to the enactment of the Amendment, the cities of
Dallas and Fort Worth had constructed a new airport, Dallas-
Fort Worth International Airport (DFW), which would handle
all the area’s air traffic. The cities agreed that existing airports,
such as Love Field, which is about 5 miles from Dallas, would
have their traffic rerouted to DFW (which is approximately
17 miles from Dallas—both distances measured as the crow
flies from downtown). Though most airlines subsequently re-
located to DFW, Southwest Airlines refused to leave Love
Field and obtained a court ruling allowing it to continue to
serve other cities in Texas. City of Dallas v. Southwest Airlines
Co., 371 F.Supp. 1015, 1035 (N.D.Tex. 1973), affd, 494 F.2d
773 (5th Cir.), cert. denied, 419 U.S. 1079, 95 S.Ct. 668, 42
L.Ed.2d 674 (1974). After the passage of the Airline Dereg-
ulation Act of 1978, Pub.L. No. 95-504, 92 Stat. 1705 (1978),
the Civil Aeronautics Board (CAB), as part of its airline de-
regulation policy, permitted Southwest to initiate Dallas-New
Orleans service. See Cramer v. Skinner, 931 F.2d 1020, 1023
(5th Cir.), cert. denied, __ U.S. —, 112 S.Ct. 298, 116
L.Ed.2d 242 (1991). Congress feared that if Southwest were
to operate on an unrestricted basis from Love Field (closer to
air carrier, and (2) such air carrier does not offer for sale trans-
portation to or from, and the flight or aircraft does not serve, any
point which is outside any such State. Nothing in this subsection
shall be construed to give authority not otherwise provided by
law to the Secretary of Transportation, the Civil Aeronautics
Board, any other officer or employee of the United States, or any
other person.
(d) This section shall not take effect if enacted after the enact-
ment of the Aviation Safety and Noise Abatement Act of 1979.
International Competition Act, § 29.
4a
Dallas than DFW) many travelers to and from Dallas would
choose that option rather than using DFW, thus undermining
the economic viability of DFW. To protect the carriers flying
into DFW and, therefore, the airport, Congress passed the
Wright Amendment to limit the competitive impact of Love
Field.
The Amendment forbids airlines from offering direct inter-
state flights from Love Field except: charter flights from Love
not exceeding 10 flights per month, commuter airlines carrying
less than 56 passengers, and flights to the contiguous states
of Louisiana, New Mexico, Oklahoma, and Arkansas. Inter-
national Competition Act § 29(a)-(c). In other words, Southwest
may provide direct service between Love Field and points
within Texas and the states bordering Texas (the Service Area).
Passengers may, under the Amendment, still fly between
Love Field and points outside the Service Area. Rather than
flying directly from Love Field to those destinations, however,
passengers must first travel from Love Field to a point within
the Service Area, change planes, and then continue on to their
final destination. Travelers must purchase separate tickets for
each leg of the trip (so-called “double-ticketing”) and may not
check their baggage for the entire journey. And, of course,
the Wright Amendment puts no restrictions on service at
DFW.
The Amendment further prohibits Southwest from “of-
fer{ing] for sale” transportation outside the Service Area. In-
ternational Competition Act § 29(c)(2). The Department of
Transportation, which administers the statute, has interpreted
that language as barring advertising or volunteering informa-
tion regarding service between Love Field and points outside
the Service Area. But if a traveler asks how he or she can fly
through the Service Area to points outside, an airline may
provide information regarding the double-ticketing arrange-
ment. We have previously upheld the Department’s interpre-
tation of the Wright Amendment without reaching a First
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bodhegn Tank
Pi Rls ks SE ALA EE
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5a
Amendment challenge. See Continental Air Lines, Inc. v. De-
partment of Transp., 843 F.2d 1444 (D.C. Cir. 1988).
Appellants include the State of Kansas, one of its airports,
the Central Travel Agency, the Wichita Airport Authority, and
a number of travelers who wish to fly into Love Field from
outside the Service Area without the inconvenience of a stop-
over in the Service Area. The travelers assert that their travel
planning is burdened by the absence of published schedules
and single through fares for flights to Love Field. The District
Court correctly determined that at least some of the individual
appellants have standing to raise all of the challenges. Kansas
v. United States, 797 F.Supp. 1042, 1048 (D.D.C. 1992). The
State of Kansas, the main litigant, may not sue on behalf of
its citizens as parens patriae, see id. n. 10, citing Alfred L.
Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 610 n. 16,
102 S.Ct. 3260, 3270 n. 16, 73 L.Ed.2d 995 (1982), but it has
standing to sue as an employer whose employees occasionally
fly to Dallas. That is not, however, because Southwest's fare
structure is lower than competing airlines. Appellants do not
dispute that that factor is quite independent of the Wright
Amendment. It is merely because Love Field is closer to
Dallas and therefore the trip presumably would take less time
and cost Kansas somewhat less if its employees could use Love
Field. The Central Travel Agency has standing to challenge
those provisions of the Amendment that inhibit its employees
from dispensing information concerning flights to and from
Love Field.
A virtually identical lawsuit was brought a few years ago
before the Fifth Circuit,? which rejected all three constitutional
claims, see Cramer v. Skinner, 931 F.2d 1020 (5th Cir.), cert.
denied, __ U.S. —., 112 S.Ct. 298, 116 L.Ed.2d 242 (1991),
as did the district court in this case. See 797 F.Supp. at 1054.
2 That case was argued by Mr. David Gallo of San Diego, who also
appeared before us as a “Special” Assistant Attorney General of the
State of Kansas and as an attoiney representing all other appellants.
6a
Il.
A. The Port Preference Clause
This provision of the Constitution has never been relied on
by the Federal Judiciary to hold an act of Congress uncon-
stitutional. The District Court, accordingly, thought the clause
“almost a historical nullity.” 797 F.Supp. at 1049. We would
prefer to say that it simply has not yet been seriously impinged
upon. The Clause has two parts, both of which appellants
assert have been transgressed by the Amendment. It states
that: “No Preference shall be given by any Regulation of Com-
merce or Revenue to the Ports of one State over those of
another: nor shall Vessels bound to, or from, one State, be
obliged to enter, clear, or pay Duties in another.” U.S.
CONST. art. I, § 9, cl. 6.
Appellants claim that an airport is a “port” for purposes of
the Clause and that the Wright Amendment, by permitting
flights between Love Field and airports in service area states,
discriminates against airports in non-service area states and
thereby provides a “preference” to airports in service area
states. Furthermore, to require passengers from, let us say,
Wichita, bound for Love Field, to disembark in Oklahoma and
change planes is to require those passengers and planes to
“enter or “clear” in Oklahoma before going on to Texas. The
government does not dispute appellants’ contentions that the
Port Preference Clause covers airports and planes, so for pur-
poses of the case, we assume that airports are “ports” and that
airplanes are “vessels” within the meaning of the Clause.
The Port Preference Clause, as reflected in the records of
the Philadelphia Convention, was designed to prevent the
federal government from providing any regulatory benefits to
ports in one state over another. The paradigm evil the Clause
was explicitly designed to prevent is a federal law requiring
ships sailing to Baltimore to first enter and clear at Norfolk.
2 RECORDS OF THE FEDERAL CONVENTION 417 (Max
Farrand ed. 1966) (comments of Maryland delegates Daniel
Carroll and Luther Martin). The Framers obviously assumed
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that forcing entry or clearance in Norfolk would be a kind of
tax imposed on vessels bound for the Chesapeake Bay; vessels
would thereby have an incentive to reduce total expenses by
delivering their cargo at Norfolk, thus reducing the volume
of shipping traffic to ports in the Chesapeake.
Taking the second part of the Clause first, we consider
appellants’ argument that the Wright Amendment obliges
planes from states outside the Service Area to “enter” or
“clear” in service area states. The Government contends that
the words enter and clear are technical terms that refer to
imported goods. Thus, one meaning of enter is “to make report
of (a ship or her cargo) at the customhouse.” WEBSTER’S
THIRD NEW INT'L DICTIONARY at 756. See also United
States v. Sullivan, 26 F.2d 606, 608 (5th Cir. 1928) (“A vessel
does not make entry by arriving at a port.”). And “clear” refers
to “free[ing] (a ship or shipment) for passage by payment of
custom duties or harbor fees.” WEBSTER’S at 420; see also
Harrison v. Vose, 50 U.S. (9 How.) 372, 380-81, 13 L.Ed.
179 (1850) (“a clearance cannot be produced unless the vessel
has first entered at the custom-house”’). We think the gov-
ernment is probably correct; the terms appear to have been
used in the traditional commercial sense of clearing customs.
Certainly that reading fits the purpose for which the Clause
was designed.
In any event, whatever the precise meaning of the terms
“enter” and “clear,” we do not see how the Clause applies to
the Wright Amendment because it cannot possibly be said that
planes “bound” for Texas are obliged to enter an airport in
“another” state when they take off from outside the Service
Area. That is so because nothing in the Amendment prevents
a plane leaving a non-service area state from traveling directly
to anywhere else in Texas before continuing on to Love Field.
As such, the language of the second part of the Clause literally
does not apply to the Wright Amendment because it cannot
be said that a “vessel bound to or from one state [is] obliged
to enter . . . in another.”
8a
Returning now to the Clause’s first sub-clause, “[n]o pref-
erence shall be given by any regulation of Commerce or Rev-
enue to ports of one state over those of another,” we cannot
quite conclude, as we did regarding the second part, that the
words do not literally cover this situation. Still, the Wright
Amendment is clearly not designed to provide a preference
to ports of one state over another; it was drafted to protect
DFW, one Texas airport, from competition from Love Field,
another Texas airport (and to airline carriers who fly into DFW
from competition from Southwest Airlines). Such a preference
is of no concern to the Port Preference Clause which is de-
signed to protect states, not individual ports. See Pennsylvania
v. The Wheeling & Belmont Bridge Co., 59 U.S. (18 How.)
421, 435, 15 L.Ed. 435 (1856).? Appellants argue, however,
that airports in the service area states benefit because those
airports can afford passengers the option of flying into Love
Field directly while that advantage is not available to airports
in states outside the Service Area and therefore the former
are given a preference.
That advantage is of moment largely because of Southwest's
lower fares, a factor quite independent of the Wright Amend-
ment. Nevertheless, for travelers bound to Dallas, Love Field
is somewhat closer than DFW, so we cannot say there is no
benefit afforded those airports that can offer direct service to
and from Love Field. The preference, such as it is, however,
is rather insignificant—certainly as compared to the very sub-
stantial and undeniably legal preference bestowed on DFW
as against Love Field. The Supreme Court, long ago, recog-
* Luther Martin of Maryland did suggest, as another example of
unconstitutional regulation, a requirement that all ships bound to
Maryland enter Georgetown (rather than Chesapeake Bay Ports) but
that would be, in truth, another device to favor Norfolk, Virginia
because such ships would have to sail all the way up the Potomac
to reach Georgetown. See Luther Martin, The Genuine Information,
in 2 THE COMPLETE ANTI-FEDERALIST 63-64 (Herbert L.
Storing ed. 1981).
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;
9a
nized that the Clause does not bar “incidental advantages that
might possibly result from the legislation of Congress upon
other subjects connected with commerce, and confessedly
within its powers.” Wheeling, 59 U.S. at 439. See Alabama
Great Southern Ry. v. United States, 340 U.S. 216, 229, 71
S.Ct. 264, 272, 95 L.Ed. 225 (1951), quoting Louisiana Public
Service Comm'n v. Texas & New Orleans R.R., 284 U.S. 125,
131, 52 S.Ct. 74, 76, 76 L.Ed. 201 (1931) (Congress may enact
laws which “ ‘greatly benefit particular ports and which inci-
dentally result to the disadvantage of other ports in the same
or neighboring states’ ”). To be sure, in this case the legislation
does not involve “other subjects”; the Wright Amendment
speaks directly to a port preference, but it is certainly true
that Congress’ obvious purpose and the primary impact of the
Amendment is to favor DFW over Love Field, not to favor
airports in the Service Area over those in the non-Service
Area. Under these circumstances, we do not believe the Port
Preference Clause is offended.‘
B. The Fight to Interstate Travel
That Americans enjoy a constitutional right to interstate
travel was first recognized in Crandall v. State of Nevada, 73
U.S. (6 Wall.) 35, 18 L.Ed. 745 (1867). Nevada had imposed
a tax on stagecoaches and railroads of $1.00 for all passengers
transported out of Nevada—in effect treating the whole state
as a toll road for through traffic. The majority of the Supreme
Court, believing the tax not violative of the dormant commerce
clause under existing precedent (two dissenters believed it
4 The Fifth Circuit also reasoned that any preference afforded ports
in the service area states was “an accident of geography.” That logic
was drawn from an earlier Fifth Circuit case, City of Houston v.
FAA, 679 F.2d 1184, 1197 (5th Cir. 1982), dealing with restrictions
on the total mileage flown by planes using National Airport in Wash-
ington, D.C. We are doubtful that the logic applies to this issue
because all state boundaries can be termed an “accident of
geography.”
10a
was), thought the right of American citizens to travel inter-
state—for example, to petition their government in Washing-
ton—was inherent in our union. The court, relying on a prior
dissenting opinion of Chief Justice Taney in The Passenger
Cases, 48 U.S. (7 How.) 283, 492, 12 L.Ed. 702 (1849), ob-
served that Americans had a right to travel. Once the court
determined that the right existed, Nevada's tax, by analogy to
M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 431, 4 L.Ed.
579 (1819) (the power to tax involves the power to destroy),
was held unconstitutional. The Court observed:
[I]t may be said that a tax of One Dollar for passing through
the State of Nevada, by stage coach or by railroad, cannot
sensibly affect any function of the government, or deprive
a citizen of any valuable right. But if the State can tax a
railroad passenger One Dollar, it can tax him One Thousand
Dollars. If one State can do this, so can every other State.
And thus one or more States . . . may totally prevent or
seriously burden all transportation of passengers. .
73 U.S. at 46. The federal courts have seldom again encoun-
tered either federal or state laws which directly burden in-
terstate travel, but the right has been relied upon in recent
years to condemn state laws that prefer long-time residents or
penalize new residents thus indirectly implicating the right to
travel. See, e.g., Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct.
995, 31 L.Ed.2d 274 (1972) (deprivation of voting rights); Sha-
piro v. Thompson, 24 394 U.S. 618, 629-31, 641-42, 89 S.Ct.
1322, 1328-30, 1335, 22 L.Ed.2d 600 (1969) (state imposed
one year waiting period for new residents seeking welfare is
unconstitutional, even with congressional authorization). When
dealing with residency requirements, the Court has asked
whether legislation involves a “classification which serves to
penalize the exercise of that right.” Attorney General of New
York v. Soto-Lopez, 476 U.S. 898, 903, 106 S.Ct. 2317, 2321,
90 L.Ed.2d 899 (1986) (plurality opinion) (internal quotation
omitted).
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This case does not involve such a classification. If the right
to travel is implicated, it can only be because “impeding travel
is its primary objective” or “it actually deters . . . travel.”
Id. at 903, 106 S.Ct. at 2321. The first proposition is easily
rejected. The Wright Amendment is hardly designed to im-
pede interstate travel; the whole purpose of the Amendment
was to encourage interstate air travel to and from the Dallas-
Fort Worth area, by channelling it through the newly built
DFW airport. See Cramer, 931 F.2d at 1031. If the airport
faced unrestricted competition from Love Field, it was thought
such competition would undermine DFW's economic vitality
and decrease total travel to and from the Dallas region.
There remains the question, does the Amendment actually
deter interstate travel? We suppose that all forms of economic
regulation or taxation that are imposed on modes of interstate
travel, whether airlines, railroads, or buses, including even
gasoline taxes can be thought—at least in pure economic
terms—to raise the cost and therefore deter interstate travel.
Most of such burdens are placed on travel generally whether
intrastate or interstate, but some are particularized to inter-
state travel. For instance, many toll roads, such as the Del-
aware Memorial Bridge, are designed primarily for interstate
use. But, as Justice O'Connor observed in her dissenting opin-
ion in Soto-Lopez, the plurality “implicitly recognize[d]
. [that] something more than a negligible or minimal im-
pact on the right to travel is required before strict scrutiny is
applied.” 476 U.S. at 921, 106 S.Ct. at 2330-31. We think in
this case that appellants’ claim does not reach that threshold,
and the impact of the Wright Amendment on interstate
travel—even air travel to and from the Dallas-Fort Worth
area—is negligible.
The parties with the greatest economic interest in encour-
aging interstate air travel are, of course, the airline carriers.
None have joined appellants, and one of the largest carriers,
American Airlines, intervened on the government's side. Ad-
mittedly, the larger carriers may well be motivated primarily
12a
to restrict Southwest's competition because of its lower price
structure, but, as we have already observed, Southwest's lower
fares are not to be attributed to the Wright Amendment. For
that same reason, we must ignore the potential availability of
lower Southwest fares for travelers who might wish to fly from
Dallas to points outside the Service Area. The only relevant
question is whether the Wright Amendment can be thought
to deter interstate air travel to or from Dallas merely because
Love Field is somewhat closer to Dallas than is DFW. We
suppose that, at least theoretically, there exist some putative _
Dallas passengers who forego interstate air travel to or from
points outside the Service Area because the Wright Amend-
ment makes it burdensome to fly into Love Field and the
alternative, DFW, is a longer drive, but we doubt very much
if such a person could actually be found. In short, we think
the Amendment's interference with interstate travel to and
from Texas or, to and from the Dallas-Fort Worth area, or
even air travel to or from Dallas alone is trivial.‘
C. First Amendment.
The government argues initially that the First Amendment
claim is not properly before us because appellants had not
given the Department an opportunity to consider the issue.
There is not much to this point since this case was brought
initially in federal court, and it is hard to see when such an
opportunity could have been aftoraed to the agency. Unlike
Continental Air Lines, Inc. v. Department of Transp., 843
F.2d 1444, 1455 (D.C. Cir. 1988), which involved an appeal
from agency orders and where we held that the First Amend-
ment challenge should have been raised below, there are no
administrative remedies to exhaust in this case.
As lawful “speech which does no more than propose a com-
mercial transaction,” Bolger v. Youngs Drug Products Corp.,
> The case is no different than if Love Field had been reserved
entirely for intrastate carriage.
13a
463 U.S. 60, 66, 103 S.Ct. 2875, 2880, 77 L.Ed.2d 469 (1983)
(quotations omitted), so-called commercial speech, advertising
of fares and service “may be restricted only if the government's
interest in doing so is substantial, the restrictions directly
advance the government's asserted interest, and the restric-
tions are no more extensive than necessary to serve that in-
terest.” Posadas de Puerto Rico Assocs. v. Tourism Co. of
Puerto Rico, 478 U.S. 328, 340, 106 S.Ct. 2968, 2976, 92
L.Ed.2d 266 (1986) (citing Central Hudson Gas & Elec. Corp.
v. Public Serv. Comm'n, 447 U.S. 557, 566, 100 S.Ct. 2343,
2351, 65 L.Ed.2d 341 (1980)).* The last two requirements are
rather obviously satisfied in this case. The advertising ban
advances the asserted governmental interest—to settle a re-
gional dispute by preferring DFW over Love Field—only too
well in appellants’ eyes: The restrictions reduce the demand
for Love Field and thereby strengthen DFW. Cf. Posadas,
478 U.S. at 341, 106 S.Ct. at 2976 (upholding ban that results
in “the reduction of demand for casino gambling”). And the
limited restriction meets the third criterion because it bears
a “reasonable fit” to the interest asserted. Board of Trustees
v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 3034, 106 L.Ed.2d
388 (1989). A permissible regulation “employs not necessarily
* Appellants urge that the prohibition on advertising should be
judged not on the Central Hudson standard for commercial speech,
but with the allegedly “heightened scrutiny” reserved for prohibition
of speech that promote a constitutionally protected activity, in this
case interstate travel. See Carey v. Population Servs. Int'l, 431 U.S.
678, 701, 97 S.Ct. 2010, 2024, 52 L.Ed.2d 675 (1977); Bigelow v.
Virginia, 421 U.S. 809, 822, 95 S.Ct. 2222, 2232, 44 L.Ed.2d 600
(1975). It is not clear how much those cases add to the Central
Hudson standard. But, in any event, appellants’ attempt to bootstrap
onto a higher level of scrutiny is fruitless. Our holding above that
the Amendment does not violate the right to interstate travel would
not change had Congress prohibited double-ticketing altogether. We
therefore need not depart from Central Hudson since the advertising
restrictions do not impinge on a constitutionally protected activity.
l4a
the least restrictive means but . . . a means narrowly tailored
to achieve the desired objective.” Id. The Department's in-
terpretation of the statute, while prohibiting advertising of
service between Love Field and points outside the service
area, permits airlines and their travel agents to provide service
schedules and prices (to facilitate “double-ticketing” arrange-
ments) to customers who specifically ask for them. The ad-
vertising ban thus is narrowly tailored to be “ ‘in proportion
to the interest served.” Id. (citation omitted).
That leaves appellants’ strongest claim: The government's
asserted interest is not sufficiently substantial to justify the
ban on advertising. The argument is troubling not because we
doubt Congress’s intentions in enacting the Amendment, but
because the constitutional test is so perplexing. Although the
Court has from time to time declared certain asserted interests
to be “substantial,” see Central Hudson Gas & Elec. Corp.
v. Public Serv. Comm’n., 447 U.S. 557, 569, 100 S.Ct. 2343,
2353, 65 L.Ed.2d 341 (1980) (“fair and efficient” energy rates);
id. at 568, 100 S.Ct. at 2352 (“energy conservation”); Posadas,
78 at 341, 106 S.Ct. at 2977 (“health, safety and welfare”):
Board of Trustees, 492 U.S. at 475, (“promoting an educational
rather than commercial atmosphere on SUNY’s campuses, pro-
moting safety and security, preventing commercial exploitation
of students, and preserving residential tranquility”), and others
not to be, see Carey v. Population Servs. Intl, 431 U.S. 678,
701, 97 S.Ct. 2010, 2024, 52 L.Ed.2d 675 (1977) (interest
against “offensive and embarrassing’ advertisements and
against “ ‘legitimation’ of illicit sexual behavior’), these deci-
sions leave little insight as to what criteria the Court used to
reach its conclusion. Indeed, the pedestrian nature of those
interests affirmed as substantial calls into question whether
any governmental interest—except those already found trivial
by the Court—could fail to be substantial.
Appellants describe the governmental interest in this case
as merely picking sides in an ongoing dispute between two
cities and their airports—an interest too petty to warrant fed-
Pe Te eee
ied) atedin RiSe AadPre Dt Sate &
PRO See bent Ba nates Sh NS the PMO Ne edn RLS
hos bef Oe
Se a ee ae eee OY oe ee Ce MTL ee eT ane 2 Sed ee
l5a
eral intervention in appellants’ eyes, let alone restrictions that
implicate the First Amendment. That expression of the gov-
ernment's interest is too narrow. If one instead characterizes
the government's interest—as we think it should be stated—
as ensuring adequate facilities for interstate air travel in the
Dallas-Fort Worth area, it seems to us impossible to question
its substantiality. Cf. Northwest Airlines, Inc.-v. Minnesota,
322 U.S. 292, 303, 64 S.Ct. 950, 956, 88 L.Ed. 1283 (1944
Jackson, J., concurring) (recognizing unique federal interest
in regulating air travel). Appellants would have us look askance
at the Wright Amendment as an undesirable interference with
market forces. Whatever our personal views, we cannot so
view the Amendment for purposes of constitutional analysis.
We, therefore, agree with the Fifth Circuit which described
the Wright Amendment as an effort to resolve “a controversy
that has long hindered efforts to improve airline service for
the Dallas-Fort Worth area.” Cramer v. Skinner, 931 F.2d
1020, 1034 (Sth Cir.), cert. denied, _. U.S. —_, 112 S.Ct.
298, 116 L.Ed.2d 242 (1991).
For the foregoing reasons, we affirm the Judgment of the
District Court.
So Ordered.
APPENDIX B
UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT
No. 92-5259 September Term, 1993
ARGUED: 11/23/93
[ENDORSED] FILED MAR 01 1994
STATE OF Kansas, et al.,
APPELLANTS
v.
UNITED STATES OF AMERICA, et all.
BEFORE: Edwards and Silberman, Circuit Judges, and
James L. Oakes, Circuit Judge, United States
Court of Appeals for the Second Circuit.
ORDER
Upon consideration of appellants’ first and second re-
quests for judicial notice, and of the responses thereto,
it is
ORDERED that the requests are denied.
PER CURIAM
(16a)
Bia ta POO a Nee There Oe
igen Alta
1
;
APPENDIX C
UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
Civ. A. No. 91-0233
STATE OF KANSAS, et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.
June 30, 1992
MEMORANDUM OPINION
JOHN H. PRATT, District Judge.
The case before the Court involves a constitutional
challenge to a provision of the International Air Trans-
portation Competition Act of 1979 (“International Com-
petition Act”), P.L. 96-192, 94 Stat. 35, 48-49 (1980), that
limits airline operations at Love Field, one of the Dallas-
area airports. The provision, known as the Wright
Amendment, restricts to Texas or its four contiguous
states commercial passenger air traffic departing from or
arriving at Love Field. All parties have filed Motions for
(17a)
18a
Summary Judgment. Because we find that the Wright
Amendment is permissible economic regulation which
does not violate either the Port Preference Clause or the
First Amendment of the United States Constitution or
the right to interstate travel, we grant defendants’ and
intervenors Motions for Summary Judgment and deny
plaintiffs’.
I. Background
The Wright Amendment, named for its sponsor, Jim Wright,
then majority leader of the House of Representatives, was
added to the International Competition Act in order to resolve
a long-standing dispute between the cities of Dallas and Fort
Worth, Texas over the question concerning which of these two
cities, closely related geographically, would have the regional
airport.! Love Field is located 5-6 miles from Dallas, whereas
Dallas-Fort Worth International Airport (“DFW”), the newer
regional airport, is approximately 18 miles from the center of
Dallas.2 The Wright Amendment, Section 29 of the Interna-
tional Competition Act, represents a legislative determination
that DFW should be the long-haul, major airport in the area.
The Wright Amendment prohibits any air carrier from offering
interstate flights with aircraft carrying more than 56 people at
Love Field unless (a) the service existed on November 1, 1979,
or (b) the service is provided by a flight to or from a point
inside Texas and the four states bordering on Texas (Louisiana,
1 Both cities, which are located 31 miles apart, originally had their
own airports, Love Field and Meacham Field. The two cities agreed
to resolve their dispute by building a new airport, DFW, and con-
solidating most airline service there. After DFW opened in 1974,
the eight certificated airlines that had been serving the area moved
their operations to DFW. Southwest Airlines declined to move. See
City of Dallas v. Southwest Airlines Co., 371 F.Supp. 1015, 1019-
21 (N.D.Tex. 1973), affd, 494 F.2d 773 (5th Cir.), cert. denied 419
U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974).
2 The two airports are approximately 12 miles apart.
19a
Arkansas, Oklahoma, and New Mexico) (“Love Field Service
Area’).* Airlines may not operate flights or provide through
service from Love Field to a point outside the Love Field
. 3 The Wright Amendment in full provides:
3 SEC. 29. (a) Except as provided in subsection (c), notwithstanding
any other provision of law, neither the Secretary of Transportation,
the Civil Aeronautics Board, nor any other officer or employee
i of the United States shall issue, reissue, amend, revise, or oth-
erwise modify (either by action or inaction) any certificate or other
authority to permit or otherwise authorize any person to provide
: the transportation of individuals, by air, as a common carrier for
compensation or hire between Love Field, Texas, and one or
more points outside the State of Texas, except (1) charter air
transportation not to exceed ten flights per month, and (2) air
transportation provided by commuter airlines operating aircraft
with a passenger capacity of 56 passengers or less.
(b) Except as provided in subsections (a) and (c), notwithstanding
; any other provision of law, or any certificate or other authority
: heretofore or hereafter issued thereunder, no person shall provide
3 or offer to provide the transportation of individuals, by air, for
compensation or hire as a common carrier between Love Field,
j Texas, and one or more points outside the State of Texas, except
that a person providing service to a point outside of Texas from
Love Field on November 1, 1979, may continue to provide service
; to such point.
(c) Subsections (a) and (b) shall not apply with respect to, and
it is found consistent with the public convenience and necessity
3 to authorize, transportation of individuals, by air, on a flight be-
tween Love Field, Texas, and one or more points within the
States of Louisiana, Arkansas, Oklahoma, New Mexico, and Texas
by an air carrier, if (1) such air carrier does not offer or provide
any through service or ticketing with another air carrier or foreign
air carrier, and (2) such air carrier does not offer for sale trans-
portation to or from, and the flight or aircraft does not serve, any
point which is outside any such State. Nothing in this subsection
shall be construed to give authority not otherwise provided by
law to the Secretary of Transportation, the Civil Aeronautics
Board, any other officer or employee of the United States, or any
other person.
(d) This section shall not take effect if enacted after the enact-
ment of the Aviation Safety and Noise Abatement Act of 1979.
eer a
a la i itis 9
20a
Service Area, and may not allow passengers to interline on
Love Field flights. The Amendment states that airlines may
not “offer for sale” transportation from Love Field to a point
outside the Love Field Service Area. Department regulations
prohibit an airline from advertising or volunteering information
on service from Love Field to areas outside the Love Field
Service Area, but do not prohibit an airline or travel agent
from providing such information when a traveller asks for it.®
The Wright Amendment has been challenged before and
has survived. As recently as May 9, 1991, the Fifth Circuit
ruled that the Amendment did not violate the Constitution in
Cramer v. Skinner, 931 F.2d 1020 (5th Cir.), cert. denied,
— U.S.—, 112 S.Ct. 298, 116 L.Ed.2d 242 (1991).* Addi-
* Interline service is connecting service involving a change from one
airline to another where each carrier agrees to accept tickets written
for travel on it by another carrier and where the carriers provide
for the transfer of baggage between flights. CAB Order 80-8181 at
4 (Aug. 29, 1980). Through service means service provided berween
the ultimate origin and destination on a single ticket for a single
sum fare. It also includes provision of service by connection between
two flights. Love Field Amendment proceeding, Dept. of Trans.
Order 85-12-81 at 10 (Dec. 31, 1985), Defendants’ Motion for Sum-
mary Judgment Ex. B.
* The carrier may not display in a computer reservations system or
list in its flight schedules, service from Love Field to a point beyond
the Love Field Service Area. However, if customers are aware that
such service is available, they can ask for it and be sold a double-
ticketed service. “[I]t does not appear that Congress intended to
preclude entirely the use of Love Field by passengers who take the
effort to find out that double-ticketed service is available, who de-
mand such tickets, and who accept the inconvenience of that
service.” Love Field Amendment Proceeding, Dept. of Trans. Order
85-12-81 at 12 (Dec. 31, 1985), Defendants’ Motion for Summary
Judgment Ex. B.
* The Southern District of California has also dismissed a challenge
to the Amendment on the ground that plaintiff lacked standing. See
Zamutt v. Skinner, No. 90-0602-B(M), 1990 WL 430756 (S.D.Cal.
Dec. 6, 1990).
2la
tionally, this Circuit has previously upheld the validity of the
Department of Transportation (“DOT”) Order that implements
the Amendment.’ See Continental Air Lines, Inc. v. Depart-
ment of Transportation, 843 F.2d 1444 (D.C. Cir. 1988).
Il. Standing To Sue
Before reaching the merits, we consider defendants argu-
ment that plaintiffs lack standing. Plaintiffs in this action in-
clude the State of Kansas; the Wichita Airport Authority; Cen-
tral College, Inc. (a travel agency); and nine individuals.®
Defendants include the United States of America; Samuel
Skinner; the United States DOT; John V. Coleman and the
Office of Aviation Analysis. Additionally, Dallas-Fort Worth
International Airport Board and American Airlines, Inc. have
been permitted to intervene.
When a court considers the issue of standing on a motion
for summary judgment, the plaintiff must submit affidavits that
indicate that a genuine issue of fact exists on this issue. See
Lujan v. National Wildlife Fed’n, 497 U.S. 871, 110 S.Ct.
3177, 3184, 111 L.Ed.2d 695 (1990). A party who invokes the
court’s authority must show that the party “ ‘personally has
suffered some actual or threatened injury as a result of the
putatively illegal conduct of the defendant.’” Valley Forge
Christian College v. Americans United for Separation of
Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752,
758, 70 L.Ed.2d 700 (1982) (quoting Gladstone, Realtors v.
Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607,
60 L.Ed.2d 66 (1979)). The injury must be traceable to the
7 The Circuit did not reach the merits of the claim that the restric-
tions on Love Field advertising violated the First Amendment's pro-
tection of commercial speech as the court held that the airline had
not exhausted its administrative remedies. See 843 F.2d at 1445.
8 Debbie Cannaday. Bebe Daniels, Bernie Dworkin, A. John Hen-
nessey, Jr., Mary Ann Lawing, Dorothy Lehman, Clifford Prescott,
Charles Singleton, and Spencer Tepe.
22a
challenged action and must be remediable by a favorable de-
cision. Id.454 U.S. at 472, 102 S.Ct. at 758. For the purposes
of determining standing, we must assume the challenged con-
duct is unconstitutional or otherwise contrary to law. See
Warth v. Seldin, 422 U.S. 490, 502, 95 S.Ct. 2197, 2207, 45
L.Ed.2d 343 (1975); Cramer v. Skinner, 931 F.2d 1020, 1025
(Sth Cir.), cert. denied, _. U.S. __, 112 S.Ct. 298, 116
L.Ed.2d 242 (1991).
Defendants challenge the standing of ten of the twelve plain-
tiffs to bring this case, but do not question the standing of
the remaining two, Bebe Daniels and Bernie Dworkin. If ei-
ther of these plaintiffs has standing to bring this case, even if
all ten of the other plaintiffs lack standing, this Court still has
jurisdiction to “entertain those common issues presented by
all plaintiffs.” General Building Contractors Association, Inc.
v. Pennsylvania, 458 U.S. 375, 402 n. 22, 102 S.Ct. 3141,
3156 n. 22, 73 L.Ed.2d 835 (1982). See also Watt v. Energy
Action Educational Foundation, 454 U.S. 151, 160, 102 S.Ct.
205, 212, 70 L.Ed.2d 309 (1981); Arlington Heights v. Met-
ropolitan Housing Development Corp., 429 U.S. 252, 264 n.
9, 97 S.Ct. 555, 562 n. 9, 50 L.Ed.2d 450 (1977). Accordingly,
we now turn to whether or not Daniels and Dworkin have
asserted an injury sufficient to support standing.
Both Daniels and Dworkin have asserted three discrete in-
juries: 1) the deprivation of their First Amendment right to
hear; 2) the deprivation of their fundamental right to travel;
and 3) economic injury. Plaintiffs can establish standing if they
can show a “substantial probability” that even one of their
asserted injuries will be redressed by a favorable ruling. See
Larson v. Valente, 456 U.S. 228, 243 n. 15, 102 S.Ct. 1673,
1682 n. 15, 72 L.Ed.2d 33 (1982).
Bebe Daniels is a 80-year old widow who rerides in close
proximity to Love Field. See Declaration of Bebe Daniels in
Support of Plaintiffs’ Motion for Summary Judgment, or in the
Alternative, for Partial Summary Adjudication (“Daniels
Decl.”) { 3. Daniels claims that on her annual visit to Chicago,
SNORT ey meant te ee
an. .
Seiad wis Pisa
Picola: Rate EOS
Sh RR RA a be Hee AG IED OR nt AR RA hr aa I Ngee ics
23a
she travels via Love Field on Southwest Airlines because it
is the least expensive carrier serving Dallas and Chicago. She
alleges that on visits in 1989 and 1990 she was forced to
disembark in Tulsa, Oklahoma, retrieve and recheck her lug-
gage, and wait for at least 45 minutes before she could continue
on her trip, because of the limitations imposed by the Wright
Amendment. She further claims that on one occasion when
returning from Chicago, she had to disembark the aircraft in
Tulsa, even though the plane was continuing to her destination
in Love Field. She states that “Southwest's employees politely
informed me that they were forbidden by the Wright Amend-
ment from allowing me to board Flight 43, because I had just
arrived on a flight (i.e., Flight 953) which had crossed the
Restricted Borders.” Daniels Decl. § 17. Consequently, she
had to await the next flight to Love Field, which left one hour
and five minutes later. Daniels Decl. § 19.
Bernie Dworkin, a resident of Dallas who is a frequent
traveler outside of the Love Field Service Area, alleges that
he believes Southwest provides the most inexpensive fares and
that because of the Wright Amendment he is forced to either
pay more to use a carrier that operates out of DFW or face
“detention” at an intermediate airport. Declaration of Bernie
Dworkin in Support of Plaintiffs’ Motion for Summary Judg-
ment, or in the Alternative, for Partial Summary Adjudication
(“Dworkin Decl.”) ¥ 8.
Both Daniels and Dworkin assert that they are dependent
on airline personnel, travel agents, and printed media pub-
lished by airlines in planning their trips and that the publi-
cation of single-sum fares and published schedules would help
their travel planning. Daniels Decl. {§ 21-22; Dworkin Decl.
14 14-15.
A. First Amendment
Plaintiffs assert that the Wright Amendment regulates the
content of protected commercial speech and violates the right
of individuals to receive such information. See Complaint 4
24a
86. Daniels and Dworkin are limited by the Wright Amend-
ment from learning of the availability of double ticketed service
whereby they could fly from Love Field to a point outside
the Love Field Service Area. They are not permitted to be
told the total cost of such a trip as a single sum. The Wright
Amendment also prevents the airline guide publication of con-
necting flight schedules, thereby preventing those passengers
who know of the possibility of double ticketing from expedi-
ently planning their trip.
The abridgement of the First Amendment right to receive
information is a judicially cognizable injury. See Virginia State
Board of Pharmacy v. Virginia Citizens Consumer Council,
Inc., 425 U.S. 748, 757, 96 S.Ct. 1817, 1823, 48 L.Ed.2d 346
(1976). As the Fifth Circuit noted in Cramer v. Skinner, the
plaintiffs are “affected by the Love Field amendment’s re-
strictions whenever [they plan] a trip beyond the Love Field
service area. Cramer, 931 F.2d at 1027. The Fifth Circuit
found that this injury placed the First Amendment claim in
a “concrete factual context” that was conducive to realistic
judicial appraisal. Id. (quoting Valley Forge Christian College,
454 U.S. at 472, 102 S.Ct. at 758.) We agree. Daniels and
Dworkin have established that at the least they are hindered
in their receipt of truthful information because of restrictions
imposed by the Wright Amendment. Consequently, we find,
as the Fifth Circuit did, that Dworkin and Daniels have alleged
a sufficient injury to assert standing to litigate the First Amend-
ment claim.
Assuming for the purposes of this analysis that the Wright
Amendment and the DOT regulations do violate the plaintiffs’
First Amendment right to receive information, we now look
to whether a favorable ruling would redress the injury.
Southwest has indicated that in the absence of the statute
it would advertise both the availability and the cost of service
between Love Field and points beyond the Love Field Service
Area. See Supplemental Statement of Material Facts as to
——-
mn le te ar ltl Al, Be alll Nl IT,
25a
Which Plaintiffs Contend There is No Genuine Issue ( Sup-
plemental Facts”) § ac. Plaintiffs then would be able to com-
parison shop more easily, and would encounter greater flex-
ibility in planning their travel. Thus, Dworkin’s and Daniels
injuries are fairly traceable to the Wright Amendment. There
is a substantial probability that a favorable decision would
redress their injury.
B. Right to Interstate Travel
It has long been settled that the Constitution protects the
right to travel interstate. See Attorney General of New York
v. Soto-Lopez, 476 U.S. 898, 901, 106 S.Ct. 2317, 2319, 90
L.Ed.2d 899 (1986). Plaintiffs Dworkin and Daniels allege that
they have suffered an injury in fact because they have been
“detained” at intermediate airports as a result of the Wright
Amendment's prohibition on travel from beyond the Love
Field Service Area to Love Field. Their declarations allege
specific trips where they were required to disembark in an
intermediate airport, reclaim luggage, and wait more than 45
minutes before they were permitted to continue on their jour-
ney to Love Field, even though there was an earlier flight
that they could have taken. Dworkin also alleges an injury
insomuch as he was denied access to a flight open to all
passengers other than those from Love Field. We find that
this is a sufficient actual injury that is fairly traceable to the
challenged Amendment. If not for the Wright Amendment,
Dworkin and Daniels would not have had to reclaim baggage
or take a connecting service flight other than the most
convenient.
Further, there is reason to believe that plaintiffs’ injuries
would be redressed if they received a favorable decision. At
the very least, plaintiffs would be allowed to check their lug-
gage through to their final destination, and they would not be
subject to any “detention” period at intermediate airports.
Southwest has also indicated that it would likely institute same-
26a
plane through service between Love Field and Chicago if the
Wright Amendment were struck down.°
C. Economic Injury
Similarly, the economic injuries which plaintiffs Dworkin
and Daniels assert, while more intangible, are sufficiently con-
crete to provide standing. Daniels has asserted that the Wright
Amendment prohibits discounted through fares, which has
caused her financial harm. Dworkin claims that because of the
wait between connecting flights he chose to fly to Phoenix
from DFW instead of Love Field, and therefore that he had
to pay a higher fare than he would have paid for double
ticketed service from Love Field. Plaintiff has offered a dep-
osition of Herbert Kelleher, the CEO of Southwest Airlines
Co., who testified that it was substantially probable that if not
for the Wright Amendment, Southwest would offer through
fares, baggage checking, and nonstop service between Love
Field and San Diego, Los Angeles, San Francisco, Phoenix
and Las Vegas. Mr. Kelleher also testified that through fares
were generally lower than the sum of point to point fares. See
Plaintiffs Memorandum of Points and Authorities in Opposi-
tion te Defendants’ Cross Motions for Summary Judgment
(“Plaintiffs’ Opposition”) Ex. A. at 27-31.
We conclude that plaintiffs Daniels and Dworkin have stand-
ing because they have sufficiently shown that they have suf-
fered injuries, that their injuries are fairly traceable to the
chalienged conduct, and that there is a substantial probability
that they will be redressed by a favorable outcome.’ Accord-
ingly, we now turn to the merits of plaintiffs’ challenge.
* See Supplemental Facts 4 1. The airline also indicated that it would
offer non-stop, through, or connecting service between Love Field
and a number of destinations. See Supplemental Facts §§ j, n, p,
a AGF
10 We note too, that the State of Kansas has standing to bring this
challenge in its capacity as an employer even though it cannot not
ee ee eee
ee ee ee Sac NL ie eis ae
hy St Sac weet 2 5
27a
III. Challenges to the Constitutionality of the Wright
Amendment
Plaintiffs bring several constitutional challenges to the
Wright Amendment. Specifically, they allege that it violates
the Port Preference Clause, the right to travel interstate, and
the First Amendment. We consider each in turn.
A. Port Preference Clause
Plaintiffs contend that the Wright Amendment violates the
Port Preference Clause by “establishing a direct preference
for the ports of the Enumerated States over those of the
Unenumerated States.” Plaintiffs’ Memorandum of Points and
Authorities in Support of Motion for Summary Judgment, or
In the Alternative, for Partial Summary Adjudication (“Plain-
tiffs Mem.”) at 18.
The Port Preference Clause provides:
No Preference shall be given by any Regulation of Com-
merce or Revenue to Ports of One State over those of
another: nor shall Vessels bound to, or from one State be
obliged to enter, clear, or pay duties in another.
U.S. Const. art. I, § 9, cl. 6. The Clause has been interpreted
only rarely over the last two hundred years, but the limited
bring this suit against the federal government as parens patriae, see
Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 610 n.
16, 102 S.Ct. 3260, 3270 n. 16, 73 L.Ed.2d 995 (1982). It has alleged
sufficient pecuniary injury as it must pay twice the double ticketed
fare to Love Field to fly to DFW, or be forced to disembark the
plane at an intermediate station if flying to Love Field (on govern-
ment time). This injury is traceable to the Wright Amendment.
Further, as Southwest has indicated that there is a substantial prob-
ability that it would initiate non-stop service between Love Field
and Kansas City International Airport, Supplemental Facts at { K,
there is a substantial probability that injury would be redressed.
Therefore, the state has asserted a judicially cognizable injury which
is likely to be redressed by a favorable decision.
28a
existing jurisprudence indicates that it operates as a narrow
exception to Congress’ power to regulate commerce.
Plaintiffs make an ambitious argument because we can find
no case in which the Port Preference Clause has been used
to strike down an act of Congress. Although the case law and
legislative history offer some support for plaintiffs’ argument
that the Port Preference Clause prohibits precisely this type
of statute—one that discriminates on the basis of states qua
states—we believe that the Port Preference Clause has been
rendered almost a historical nullity. As we find that the Wright
Amendment was enacted incident to Congress well-estab-
lished power to regulate air transportation, and as there is no
evidence that any impermissible motive led to the adoption
of the four state Love Field Service Area, we hold that the
Wright Amendment does not violate the Port Preference
Clause of the United States Constitution. The following dis-
cussion is illuminating not only as to the history and origins
of the Clause but also as to its treatment in the Courts.
The Port Preference Clause was originally enacted to calm
the fears of Maryland that Virginia would use its political clout
to force ships bound for Maryland to stop and clear customs
at Norfolk, Virginia, before entering the Chesapeake Bay. See
City of Milwaukee v. Yeutter, 877 F.2d 540, 545 (7th Cir.),
cert. denied, 493 U.S. 976, 110 S.Ct. 500, 107 L.Ed.2d 503
(1989) (citing 2 The Records of the Federal Convention of 1787
at 417 (Max Farrand ed. rev. ed. 1966) (“Federal Convention
Records )). Although the language adopted at the Convention
was weaker than some preferred, it is well established that
the goal of the clause was to prevent the national government
from explicitly privileging the port and related duty collection
of certain states.! It was originally proposed with the Unifor-
1 Luther Martin, the proponent of the clause, noted its importance:
This provision, as well as that which relates to the uniformity of
impost duties and excises, was introduced, Sir, by the delegation
of this State. Without such a provision, it would have been in
A 7
Beet
2a aaah a ag EEN ot Med,
29a
mity Clause, Art. I, § 8, cl. 4., and “reported out of a special
committee as an interrelated limitation on the National Gov-
ernment * commerce power . United States v. Ptasynski, 462
U.S. 74, 80 n. 10, 103 S.Ct. 2239, 2243 n. 10, 76 L.Ed.2d
427 (1983) (citing 2 Federal Convention Records at 437). See
also Knowlton v. Moore, 178 U.S. 41, 104, 20 S.Ct. 747, 772,
44 L.Ed. 969 (1900) (two clauses had the same significance).
In the two hundred-odd years since its adoption, the Port
Preference Clause has been interpreted only rarely, and then,
under its most narrow construction. Indeed, we must go back
to the year 1856, almost a century and a half ago, to find the
leading case on the Port Preference Clause. In Pennsylvania
v. Wheeling and Belmont Bridge Co., 59 U.S. (18 How.) 421,
the power of the general government to have compelled all ships
sailing into or out of the Chesapeake, to clear and enter at Norfolk,
or some port in Virginia; a regulation which would be extremely
injurious to our commerce, but which would, if considered merely
as to the interest of the Union, perhaps not be thought unrea-
sonable; since it would render the collection of the revenue arising
from commerce more certain and less expensive.
3 Federal Convention Records App. A, CLVIII at P 67. But Martin
was displeased with the final version, as it permitted the Federal
government to regulate the ports indirectly. As the Seventh Circuit
noted in City of Milwaukee v. Yeutter,
Luther Martin, the force behind the Clause, was not satisfied and
went into opposition after the Convention. Martin complained
that the Clause dealt only with express preferences and left states
to bear the effects of other rules. He expressed greatest concern
about Congress’ power to designate some places as customs ports
to the exclusion of others . . . . Hyperbole from opponents must
be used with care, but Martin, as the proponent of the Port
Preference Clause, was in the ideal position to know what he had
and hadn’t obtained from his colleagues at the Convention; he
wanted, and couldn't get, a ban on disparate impact. For two
hundred years, courts have understood that only explicit discrim-
ination violates the Port Preference Clause, and this dooms Mil-
waukee’s argument.
877 F.2d at 546.
he eo eae ee
30a
15 L.Ed. 435 (1856), Pennsylvania challenged the construction
of a bridge over the Ohio River near Wheeling, West Virginia.
Pennsylvania contended that the low height of the bridge dis-
couraged river traffic from continuing up river to Pittsburgh
and that Congress’ explicit approval of the construction of the
bridge thereby violated the Port Preference Clause. The Su-
preme Court found that the construction of the bridge did not
violate the Port Preference Clause. The Supreme Court in-
terpreted the clause narrowly, finding that it did not prohibit
regulation that had disparate effects on various ports, but only
those acts which directly discriminated against states:
Indeed, the clause, in terms, seems to import a prohibition
against some positive legislation by Congress to this effect,
and not against any incidental advantages that might possibly
result from the legislation of Congress upon other subjects _
connected with commerce, and confessedly within its pow-
ers . . . The truth seems to be, that what is forbidden is,
not discrimination between individual ports within the same
or different states, but discrimination between states; and
if so, in order to bring this case within the prohibition, it
is necessary to show, nct merely discrimination between
Pittsburgh and Wheeling, but discrimination between the
ports of Virginia and those of Pennsylvania.
59 U.S. at 433-35. Later cases have supported this approach.
As it has been interpreted, the Port Preference Clause does
not bar statutes regulating commerce that incidentally operate
to the prejudice of the ports in a neighboring state, but it
forbids discrimination between states. See, e.g., Louisiana
Public Service Commission v. Texas & New Orleans R.R., 284
U.S. 125, 131, 52 S.Ct. 74, 76, 76 L.Ed. 201 (1931); Armour
Packing Co. v. United States, 209 U.S. 56, 80, 28 S.Ct. 428,
435, 52 L.Ed. 681 (1908); South Carolina v. Georgia, 93 U.S.
4, 13, 23 L.Ed. 782 (1876). Similarly, facially neutral statutes
that disparat ly affect states do not violate the clause. See
Alabama Great Southern R.R. v. United States, 340 U.S. 216,
229, 71 S.Ct. 264, 272, 95 L.Ed. 225 (1951).
fines lat deeds catia
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3la
This is not the first time that the Port Preference Clause
has been used in an attempt to challenge airport perimeter
rules. In City of Houston v. Federal Aviation Administration,
679 F.2d 1184 (5th Cir. 1982), the Fifth Circuit upheld a
F.A.A. regulation that prohibited the use of National Airport
for non-stop flights to cities that were more than 1,000 miles
from Washington, D.C. After reviewing the Port Preference
Clause jurisprudence, the Fifth Circuit distilled the parameters
of the Port Preference Clause as it has been interpreted by
the Supreme Court: :
Government actions do not violate the Clause even if they
result in some detriment to the port of a state, where they
occur (i) as an incident to some otherwise legitimate gov-
ernment act regulating commerce or (ii) more as a result of
the accident of geography than from an intentional govern-
ment preference.
679 F.2d at 1197. The Fifth Circuit upheld the 1,000 mile
perimeter rule for Washington National Airport, noting that
the rule was facially neutral, and that it did not discriminate
against any particular state. Id. at 1198.
In Cramer v. Skinner, 931 F.2d 1020 (5th Cir.), cert. de-
nied, __ U.S. __, 112 S.Ct. 298, 116 L.Ed.2d 242 (1991), the
Fifth Circuit relied on the prior City of Houston and found
that the Wright Amendment satisfied both prongs of the test.
The Circuit held that the Wright Amendment was enacted
incident to Congress’ regulation of interstate airline service
and “pursuant to its rational decision to maintain the agree-
ment between Dallas and Fort Worth,” 931 F.2d at 1032, and
that the four states preferred by the Amendment were pre-
ferred as an accident of geography rather than as the result
of an intentional government preference. Id.
Cramer has not demonstrated that Congress deliberately
discriminated against the 45 states not bordering on Texas
by requiring travelers from such states to use DFW if they
wish to travel to Dallas-Fort Worth on a nonstop or
“through” ticket.
32a
931 F.2d at 1032 n. 14.
The Wright Amendment was enacted pursuant to the gov-
ernment’s power to regulate air transportation and to resolve
a long-standing dispute that had impeded the development of
the region’s air resources. It does not require that all flights
from Kansas to Texas first stop in one of the four contiguous
statest only conditions those heading to or leaving from Love
Field. Nothing is stopping flights from Kansas from flying
directly to DFW, only a few miles from Love Field.”
Finally, while the choice of the surrounding states as the
Love Field Service Area rather than a straight distance pe-
rimeter rule may be a less desirable alternative, it is not
unconstitutional. As other courts have noted, any perimeter
rule is by its nature somewhat arbitrary. There is no evidence
that Congress chose these four states with any evil motive, or
for any reason other than they were the closest ones. The use
of political boundaries in lieu of geographical ones does not,
without more, turn an otherwise permissible “accident of ge-
ography’ into an impermissible use of state power. This would
be elevating form over substance.
As an initial proposition, plaintiffs make a compelling ar-
gument that the Port Preference Clause, as it was enacted,
‘2 The Port Preference clause has been construed so narrowly that
we think only a statute that required all planes leaving or entering
Texas as to first land in one of the contiguous states would violate
the Port Preference Clause. Even then the Fifth Circuit’s interpre-
tation might permit such an act if the requirement were incident to
“some otherwise legitimate act regulating commerce.”
3 See, e.g., Cramer v. Skinner, 931 F.2d 1020, 1031 (5th Cir.),
cert. denied, __ U.S. —_, 112 S.Ct. 298, 116 L.Ed.2d 242 (1991);
City of Houston v. Federal Aviation Administration, 679 F.2d 1184,
1193 (Sth Cir. 1982); Western Air Lines, Inc. v. Port Authority, 658
F.Supp. 952, 958-959 (S.D.N.Y. 1986), affd, 817 F.2d 222 (2d Cir.
1987), cert. denied, 485 U.S. 1006, 108 S.Ct. 1467, 99 L.Ed.2d 697
(1988).
Ie ey tat) neh MR a
33a
was designed to prevent this type of legislation. However, it
has not so been interpreted by the courts of this land. In the
end, we are forced to agree with Justice Holmes who said:
“Upon this point a page of history is worth a volume of logic.”
New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct.
506, 507, 65 L.Ed. 963 (1921). We hold that the Wright
Amendment does not violate the Port Preference Clause of
the Constitution.
B. Right to Travel Interstate
Plaintiffs also argue that the Wright Amendment violates
the right to travel interstate by creating an impermissible clas-
sification based upon the exercise of a fundamental right. See
Plaintiffs Mem. at 29-30. We do not accept this contention.
Instead, we hold that the Wright Amendment is not an un-
constitutional violation of the right to interstate travel because
it is a miror restriction, and furthers legitimate governmental
goals.
“* ‘Freedom to travel throughout the United States has long
been recognized as a basic right under theConstitution.’ ’ ”™
Although the textual support for this right has been located
in various provisions of the Constitution,® “[w]hatever its or-
igin, the right to migrate is firmly established and has been
repeatedly recognized . . .”. Attorney General of New York
v. Soto-Lopez, 476 U.S. 898, 903, 106 S.Ct. 2317, 2320-21,
90 L.Ed.2d 899 (1986) (plurality opinion).
14 Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 901,
106 S.Ct. 2317, 2320, 90 L.Ed.2d 899 (1986) (quoting Dunn v.
Blumstein, 405 U.S. 330, 338, 92 S.Ct. 995, 1001, 31 L.Ed.2d 274
(1972) (quoting United States v. Guest, 383 U.S. 745, 758, 86 S.Ct.
1170, 1178, 16 L-Ed.2d 239 (1966)) (plurality opinion).
IS See 476 U.S. at 902, 106 S.Ct. at 2320 (noting that the right has
been located in the Privileges and Immunities Clause of Article IV,
the Commerce Clause, the Privileges and Immunities Clause of the
Fourteenth Amendment, and the federal structure of the
government).
34a
Where the fundamental right to travel is implicated, a stat-
ute can be upheld only if it is supported by a showing of
compelling interest on the part of the government. See 476
U.S. at 904, 106 S.Ct. at 2321. However, not every restriction
on travel operates to implicate the fundamental right. See id.
at 903, 106 S.Ct. at 2321 (state law implicates. the right to
travel when it actually deters such travel, when impeding
travel is its primary objective, or when it uses any classification
which serves to penalize the exercise of that right); Jones v.
Helms, 452 U.S. 412, 423, 101 S.Ct. 2434, 2442, 69 L.Ed.2d
118 (1981).4° The relevant question is not only the extent of
the governmental restriction involved, but also the necessity
for the restriction. See Zemel v. Rusk, 381 U.S. 1, 14, 85
S.Ct. 1271, 1279, 14 L.Ed.2d 179 (1965).
The Wright Amendment operates only as an inconsequential
impediment to the right to travel and does not implicate the
fundamental right. The Wright Amendment does not prohibit
interstate travel, it merely makes it slightly more of a hin-
drance for those travelers who insist on using Love Field. As
the Fifth Circuit noted in Cramer, “The Love Field Amend-
ment does not bar travelers from distant cities from using Love
Field. Rather, just as the perimeter rule at issue in City of
Houston, it makes travel less convenient for such passengers.
Love Field remains attractive for many long-distance travel-
ers, . . . despite the statutory restrictions.” 931 F.2d at 1030.
16 See also Attorney General of New York, 476 U.S. at 921, 106
S.Ct. at 2330-31 (O'Connor, J., dissenting) (“As the plurality im-
plicitly recognizes, it is fair to infer that something more than a
negligible or minimal impact on the right to travel is required before
strict scrutiny is applied.”); Memorial Hospital v. Maricopa County,
415 U.S. 250, 256-257, 94 S.Ct. 1076, 1081, 39 L.Ed.2d 306 (1974)
(“The amount of impact ‘equired to give rise to the compelling-state
interest test was not made clear.”); Cramer, 931 F.2d at 1031 (“Minor
restrictions on travel simply do not amount to the denial of a fun-
damental right that can be upheld only if the Government has a
compelling justification”).
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35a
There is no constitutional right to the most convenient form
of transportation.” No one is prevented from travelling to any
state in the Union by the Wright Amendment; they are merely
restricted from using one airport to do so.’* Nor is anybody
completely prevented from using Love Field to travel beyond
the Love Field Service Area: the Wright Amendment merely
delays their departure for a short period. “[N]Jot all waiting
periods are impermissible.”!* If anyone wants to fly into Texas
they can do so; if they insist on flying into Love Field, they
can also do so, but with some restrictions. The Wright Amend-
ment merely makes some travel less convenient for some res-
idents, but it does not prevent them from exercising their
right to travel interstate.”
Further, Congress imposed the Wright Amendnent for ra-
tional reasons: to legislatively support a dispute resolution
'7 931 F.2d at 1031; City of Houston v. Federal Aviation Adminis-
tration, 679 F.2d 1184, 1198 (Sih Cir. 1982) (“At most, their ar-
gument reduces to the feeble clairn that passengers have a consti-
tutional right to the most convenient form of travel. That notion, as
any experienced traveler can attest, finds no support whatsoever in
Shapiro or in the airlines’ own schedules”).
‘8 Cf. Anderson v. USAir, Inc., 818 F.2d 49, 56 (D.C. Cir. 1987)
(“But, as to the federal government, it is well established that a
policy intimately related to interstate air travel would not exceed
the scope of the commerce clause”; indicating that policy that pre-
vented disabled passenger from seating in emergency rows would
not violate right to travel as seats were offered in nonemergency
rows).
‘8 Attorney General of New York, 476 U.S. at 905 n. 5, 106 S.Ct.
at 2322 n. 5 (discussing Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553,
42 L.Ed.2d 532 (1975), which found that a one-year residency con-
dition for maintaining an »<tion for divorce did not impermissitly
violate the right to migrate).
* Of course, a different result would be required if Love Field were
the orly airport in Texas. Then, a congressional enactment that
limited the flights from that airport to certain states would clearly
implicate the right to interstate travel.
36a
reached by the two cities. The perimeter rule reinforced the
development of DFW into the leading airport in the area, and
indeed one could argue (as defendants do) that the Wright
Amendment was designed to facilitate interstate travel.
Consequently, we find that the Wright Amendment does
not impermissibly infringe on the right to interstate travel.*!
C. First Amendment
Plaintiffs’ final claim is that the Wright Amendment imper-
missibly abridges the First Amendment by limiting protected
commercial speech. This claim was also asserted to support
plaintiffs’ assertion of their standing to sue. Commercial speech
is that speech which proposes a commercial transaction. See
Board of Trustees v. Fox, 492 U.S. 469, 473-74, 109 S.Ct.
3028, 3031, 106 L.Ed.2d 388 (1989); Posadas de Puerto Rico
Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 340,
106 S.Ct. 2968, 2976, 92 L.Ed.2d 266 (1986). There is no
doubt that the speech at issue here, the advertising of flights
21 Plaintiffs also argue that the Wright Amendment infringes on the
First Amendment right of association. They recall the freedom riders
and the civil rights workers to claim that prohibiting travel can deter
people from associating with whomever they want. They argue that
if the Wright Amendment is permissible, precedent in this case could
be used to support “some future congress or president to suppress
dissent against some future declared or undeclared war, some future
tax, or some other action of government, through the enactment of
facially innocuous restraints on travel between the states.” Plaintiffs’
Mem. at 38. Plaintiffs argue that under First Amendment analysis,
restraints on interstate travel should be considered as analogous to
restraints on speech and restrictions on travel conditioned on crossing
state lines should be similar to content restriction. While this is an
interesting argument, we feel no need to extend the law in this
direction. Plaintiffs have introduced no evidence that the Wright
Amendment was enacted to curtail the associational or speech rights
of any traveler, nor any evidence that it in fact does so. Conse-
quently, we reject this approach. See Cramer, 931 F.2d at 1032-33.
37a
available from Love Field, proposes a commercial transaction
and is commercial speech.
To analyze the lawfulness of restrictions on commercial
speech, the Supreme Couri has indicated that the proper ap-
proach is first to
‘determine whether the expression is protected by the First
Amendment. For commercial speech to come within that
provision, it at least must concern lawful activity and not
be misleading. Next, we ask whether the asserted govern-
mental interest is substantial. If both inquiries yield positive
answers, we must determine whether the regulation directly
advances the governmental interest asserted, and whether
it is not more extensive than is necessary to serve that
interest.’
Board of Trustees, 492 U.S. at 475, 109 S.Ct. at 3032 (c»oting
Central Hudson Gas & Electric Corp. v. Public Sé« vice
Comm'n, 447 U.S. 557, 566, 100 S.Ct. 2343, 2351, 65 L.Ed.2d
341 (1980)). As no party has alleged that the speech at issue
here does not concern lawful activity or is misleading, we will
assume that the speech at issue is protected by the First
Amendment.
We next turn to whether the asserted governmental interest
is substantial and whether the regulation is broader than is
necessary to serve that interest. The defendants assert that
the government's interest was to resolve the differences be-
tween Dallas and Fort Worth in developing a regional airport.
See also H.R. Conf. Rep. No. 716, 96th Cong., Ist Sess. 24-
26 (1979) (“Perhaps the most important point about Section
29 is that it provides a fair and equitable settlement for a
dispute that has raged in the Dallas/Fort Worth area for many
years). This is a substantial governmental interest. It is be-
yond question that Congress has the power to regulate air
transportation in this country, and the development of airports
falls squarely within that ambit. The Wright Amendment
38a
serves to finally resolve a dispute that had prevented the
region from developing its resources.
The Wright Amendment directly advances the interest as-
serted by reducing demand for air travel from Love Field.
Lack of advertising will lead to a lack of consumer awareness,
and while it is not a particularly attractive government goal
to keep consumers in the dark, a ban on advertising available
services will further the interest in promoting DFW to the
exclusion of Love Field. See Posadas de Puerto Rico Associates
v. Tourism Co. of Puerto Rico, 478 U.S. 328, 342, 106 S.Ct.
2968, 2977, 92 L.Ed.2d 266 (1986) (prohibiting casino adver-
tising would further government's interest in reducing de-
mand); Central Hudson Gas & Electric Corp. v. Public Service
Comm'n, 447 U.S. 557, 569, 100 S.Ct. 2343, 2353, 65 L.Ed.2d
341 (1980) (“There is an immediate connection between ad-
vertising and demand for electricity.”) Nor is the statute more
extensive than necessary to serve the interest. It does not
prohibit the knowledgeable consumer from receiving the in-
formation she seeks upon request.
The restriction on speech does not have to be the least
restrictive available. Instead, there must be a “ ‘fit’ between
the legislature's ends and the means chosen to accomplish
those ends.” Board of Trustees, 492 U.S. at 480, 109 S.Ct.
at 3034 (quoting Posadas, 478 U.S. at 341, 106 S.Ct. at 2976).
There is clearly such a fit here as the advertising restrictions
will lead more people to fly through DFW than would be the
case if they knew service was available through Love Field.
Accordingly, we find that the Wright Amendment’s restric-
tions on commercial speech do not impermissibly abridge the
First Amendment.
In conclusion, we join the Fifth Circuit to find that the
Wright Amendment does not violate the Constitution. We
therefore grant defendants’ and intervenors’ motions for sum-
mary judgment and deny plaintiffs’ motion.
APPENDIX D
UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
Civ. A. No. 91-0233
STATE OF KANSAS, et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.
ORDER
In accordance with the Memorandum Opinion filed this
day, it is, by the Court, this 30th day of June, 1992,
hereby
ORDERED that Plaintiff's Motion for Summary Judg-
ment, or in the alternative, for Partial Summary Adju-
dication, is denied; and it is
ORDERED that Defendants’ and Intervenors’ Motions
for Summary Judgment are granted; and it is
FURTHER ORDERED that this case is dismissed with
prejudice.
/s/ John H. Pratt
John H. Pratt
United States District Judge
(39a)
APPENDIX E
STATUTCRY PROVISIONS INVOLVED
Secticn 29 of the International Air Transportation Com-
petition Act of 1979, Pub.L. No. 96-192, 94 Stat. 35
(1980).
Sec. 29. (a) Except as provided in sub-
section (c), notwithstanding any other pro-
vision of law, neither the Secretary of
Transportation, the Civil Aeronautics
Board, nor any other officer or employee
of the United States shall issue, reissue,
amend, revise, or otherwise modify (either
by action or inaction) any certificate or other
authority to permit or otherwise authorize
any person to provide the transportation of
individuals, by air, as a common carrier for
compensation or hire between Love Field,
Texas, and one or more points outside the
State of Texas, except (1) charter air trans-
portation not to exceed ten flights per
month, and (2) air transportation provided
by commuter airlines operating aircraft with
a passenger capacity of 56 passengers or
less.
(b) Except as provided in subsections (a)
and (c), notwithstanding any other provision
of law, or any certificate or other authority
heretofore or hereafter issued thereunder,
(40a)
4la
no person shall provide or offer to provide
the transportation of individuals, by air, for
compensation or hire as a common carrier
between Love Field, Texas, and one or
more points outside the State of Texas, ex-
cept that a person providing service to a
point outside of Texas from Love Field on
November 1, 1979, may continue to provide
service to such point.
(c) Subsections (a) and (b) shall not apply
with respect to, and it is found consistent
with the public convenience and necessity
to authorize transportation of individuals,
by air, on a flight between Love Field,
Texas, and one or more points within the
States of Louisiana, Arkansas, Oklahoma,
New Mexico, and Texas by an air carrier,
if (1) such air carrier does not offer or pro-
vide any through service or ticketing with
another air carrier or foreign air carrier, and
(2) such air carrier does not offer for sale
transportation to or from, and the flight or
aircraft does not serve, any point which is
outside any such State. Nothing in this sub-
section shall be construed to give authority
not otherwise provided by law to the Sec-
retary of Transportation, the Civil Aero-
nautics Board, any other officer or em-
ployee of the United States, or any other
person.
(d) This section shall not take effect if
enacted after the enactment of the Aviation
Safety and Noise Abatement Act of 1979.
APPENDIX F
Order 85-12-81]
UNITED STATES OF AMERICA
DEPARTMENT OF TRANSPORTATION
OFFICE OF THE SECRETARY
WASHINGTON, D.C.
No. 43307
LOVE FIELD AMENDMENT PROCEEDING
Issued by the Department of Transportation
on the 3lst day of December, 1985
ORDER
By Order 85-7-65 (July 26, 1985), the Department re-
quested comments on the interpretation of the Love Field
Amendment (Amendment) (Sec. 29, International Air
Transportation Competition Act of 1979, Pub. L. 96-192,
94 Stat. 35 (1980)), which restricts service by air carriers
at Love Field, Texas.'! Our request for comments followed
' The question of proper interpretation of the Love Field Amend-
ment was previously raised in the Southwest Airlines—Muse Air
Acquisition Proceeding, where the Department found it unnecessary
to reach the issue in its decision. Order 85-6-79 (June 24, 1985).
We did, however, suggest that the issue should be resolved in
another context. Id.
(42a)
43a
announcement by Continental Airlines of its intention to
commence service at Love Field and opposition of various
persons to this service. On July 10, 1985, the Dallas/Fort
Worth (DFW) Parties? submitted a letter to the De-
partment’s Office of Aviation Enforcement and Proceed-
ings seeking an informal enforcement investigation and
order prohibiting Continental's proposed service.
In view of the current dispute regarding Love Field
service, and because the issue is primarily a question of
law, we asked for comments to assist us in interpreting
the Amendment. Responders were asked to specifically
address the questions of whether an air carrier can serve
Love Field on a non-interline basis, if the carrier inter-
lines elsewhere on its system; and whether the Amend-
ment applies to intrastate service. We received comments
and reply comments from: Air Midwest, America West
Airlines, Continental Air Lines, the Dallas/Fort Worth
Parties, Delta Air Lines, the Department of Justice, the
Regional Airline Association, Republic Airlines, and
Southwest Airlines, Co., and several letters from the gen-
eral public. In addition to comments concerning statutory
interpretation, several parties raised related questions
about marketing of Love Field services in a manner con-
sistent with provisions of the Amendment. We have con-
sidered all comments and have also taken notice of Orders
80-3-9, 80-5-12, 80-8-181, and 80-12-102 of the Civil Aer-
onautics Board, the pleadings in City of Dallas v. CAB,
Case Nos. 80-2064 and 81-1192 (D.C. Cir. 1980), and
the legislative history of the Amendment in interpreting
its meaning.
After careful review of these matters, the Department
has decided that: 1) Continental’s proposed service be-
2 The DFW Parties are the City of Dallas, Texas, the City of Fort
Worth, Texas, and the Dallas—Fort Worth International Airport
Board.
44a
tween Love Field and Houston, Texas, does not violate
the Love Field Amendment; 2) the Amendment does not
apply to flights by intrastate carriers or intrastate service
by an ‘air carrier’; 3) upon the request of passengers,
Continental or its agents may sell ‘double tickets’ to pas-
sengers continuing on a different aircraft and flight be-
yond an authorized destination from Love Field; 4) how-
ever, neither Continental nor its agents may list in any
manner, including a computer reservation system, a flight
from Love Field as a ‘connection’ to a point beyond the
Love Field authorized service area; 5) Delta, or any other
airline, may list in its computer reservation system flights
from Love Field by a certificated carrier using small air-
craft in the same manner as commuter carrier flights; and
6) intrastate and air carriers may provide service between
Love Field and other points within the state of Texas so
long as they do not use this service to avoid the Love
Field Amendment'’s restrictions on interstate air service.
BACKGROUND
Since the completion of Dallas/Ft. Worth Regional Air-
port (DFW), which resolved a long-standing rivalry be-
tween Dallas and Ft. Worth for interstate service to their
communities, the DFW Parties have sought to prohibit
interstate service at other area airports. The DFW Par-
ties, in fact, previously asked the CAB to prohibit in-
terstate service at area airports other than DFW, espe-
cially Love Field. The CAB refused to do so. The DFW
Parties’ argument for this prohibition in the years im-
mediately following completion of the regional airport was
that interstate operations at Love Field would damage
the viability of the new airport. See Order 79-9-192 (Sep-
tember 28, 1979).
In addition, the Airline Deregulation Act of 1978 (Pub.
L. 95-504, 92 Stat. 1705 (1978)) substantially changed the
Federal government's regulatory oversight of air trans-
45a
portation. In particular, the Act includes a provision, as
part of the listing of public interest elements, concerning
the use of satellite airports and the power of regional
authorities over their use. Section 102(a)(6), 49 U.S.C.
1302(a)(6). Some members of the House of Representa-
tives apparently believed this provision would prohibit
the CAB from authorizing interstate service at Love
Field, but the Conference Report on the subsequently
passed Love Field Amendment indicates the Senate did
not share this view. S. Rep. No. 96-531, 96th Cong., lst
Sess. (1980) [hereafter, Conference Report]. The Dereg-
ulation Act also includes provisions, known as the Au-
tomatic Market Entry (AME) program, that allowed car-
riers to enter certain markets prior to complete route
deregulation without a CAB finding that entry was
needed. Section 401(d)(7), 49 U.S.C. 1371(d)(7). Under
the AME provisions, the CAB ruled that Southwest Air-
lines could provide interstate service from Love Field,
notwithstanding section 102(a)(6). Order 79-9-192 (Sep-
tember 29. 1979). ;
Congress subsequently addressed the dispute respect-
ing service at Love Field in an amendment to the In-
ternational Air Transportation Competition Act (IATCA).
Congressman Jim Wright initially introduced an amend-
ment to IATCA, passed by the House, that effectively
prohibited all interstate air service at Love Field. How-
ever, the Semate version of IATCA contained no similar
provision. The Conference Committee adopted a com-
promise solution to settle the controversy, producing the
current Love Field Amendment. It rejected Congressman
Wright's total ban on interstate air service at Love, but
imposed substantial restrictions. Subsection (a) of the
Amendment prohibits the CAB or its successor from au-
thorizing interstate service (other than limited charter and
commuter flights) to Love Field, except in accordance
with remaining provisions of the Amendment. Subsection
46a
(b) prohibits interstate scheduled service at Love Field,
except in accordance with other provisions of the Amend-
ment, or if such service was operated before November
1979. This section assured that Southwest could continue
to operate Love Field service the CAB had previously
authorized. Subsection (c) defines the scope of permis-
sible service as follows:
(c) Subsections (a) and (b) shall not apply with respect
to, and it is found consistent with the public conven-
ience and necessity to authorize, transportation of in-
dividuals, by air, on a flight between Love Field,
Texas, and one or more points within the States of
Louisiana, Arkansas, Oklahoma, New Mexico, and
Texas by an air carrier, if (1) such air carrier does not
offer or provide any through service or ticketing with
another air carrier or foreign air carrier, and (2) such
air carrier does not offer for sale transportation to or
from, and the flight or aircraft does not serve, any
point which is outside any such state. Nothing in this
subsection shall be construed to give authority not oth-
erwise provided by law to the Secretary of Transpor-
tation, the Civil Aeronautics Board, any other officer
or employee of the United States, or any other person.
Continental does not plan on operating from Love Field
beyond the five-state area specified in (c), an action which
would be clearly prohibited. Rather, Continental plans
to serve Love Field with flights to Houston. Continental
has interline agreements with other carriers and provides
interline service at its Houston hub. Thus, in interpreting
the Amendment, we must interpret the interline pro-
hibition contained in (c)(1) to determine whether the
Amendment should be construed to prohibit a carrier
that interlines elsewhere on its system from serving Love
Field, or whether it should be construed merely to pro-
hibit interlining in connection with service at Love Field.
47a
The Dallas—Ft. Worth Parties and Southwest argue
that the Amendment prohibits service at Love Field by
carriers that interline anywhere on their systems, even
if no interline service is provided on flights serving Love
Field. The Justice Department disagrees, arguing that
Congress intent in enacting the Amendment was to pro-
hibit interlining only in connection with Love Field serv-
ice. Justice notes that this view is consistent with prior
CAB interpretations of section (c)(1).
The CAB’s most detailed interpretation of the interline
prohibition occurred in connection with an airport notice
filed in 1980 by Texas International Airlines (TI) to in-
augurate interstate service from Love Field.’ The airport
notice was opposed by Southwest and the DFW Parties
on the grounds that the Amendment prohibited Love
Field service by interlining carriers, such as TI, even if
the carrier did not provide interline service from Love.‘
The CAB disagreed and permitted TI to institute the
proposed interstate service, interpreting the Amendment
as restricting interlining on flights serving Love Field,
rather than as a total prohibition on serviug Love Field
hy carriers that interline elsewhere on their systems.
Order 80-8-181 (August 29, 1980).5 The DFW Parties
sought judicial review of that order City of Dallas v. CAB,
Case Nos. 80-2064 and 81-1192 (D.C. Cir. 1980). The
3 TI was subsequently merged into Continental after its parent, Texas
Air Corporation, acquired Continental.
* Unlike T!. Southwest, which had previously been authorized by
the CAB to provide service at Love, did not interline with other
carriers elsewhere on its system. Order 79-9-192 (September 29,
1979).
5 In addition, the CAB found that the Amendment’s restrictions,
while statutory and clearly applicable without further regulatory ac-
tion, should be embodied in certificates authorizing such service, as
intended by Congress (Conference Report at 25). Order at 6.
48a
issue, however, was never resolved, because TI discon-
tinued its Love Field service during the course of the
appeal; and the case was dismissed as moot.
Continental’s proposed service at Love Field is similar
to ‘re earlier service of TI approved by the CAB. The
issues and positions of interested parties remain much
the same as in TI’s 1980 application. After careful review
of comments, the plain words of the Amendment, and
its legislative history, we have determined that the CAB
properly interpreted subsection (c)(1) as only prohibiting
interlining on flights serving Love Fieid. Thus, we find
the Amendment does not prevent Continental from pro-
viding service between Love Field and Houston.
OPERATIONS BY AN AIR CARRIER
WITH INTERLINE SERVICE
The Department interprets the Amendment as not pro-
hibiting non-interline service at Love Field by an air
carrier that provides interline service elsewhere on its
system. The DFW Parties, Southwest, and Republic, who
do not agree with this interpretation, contend that we
should first look to the plain wording of the Amendment
to ascertain Congressional intent, unless the literal word-
ing of the statute would lead to ‘unreasonable’ or ‘incon-
gruous results. United States v. American Trucking
Ass ns, 310 U.S. 534, 543 (1940). We do not disagree.
In examining the wording of the Amendment, it is clear
that the critical part of subsection (¢) is one sentence
regarding service by ‘an air carrier ‘om a flight between
Love Field, Texas,’ and points in Texés and the adjacent
four states. Subclause (1) prohibits ‘such air carrier’ from
offering or providing through service or ticketing with
other carriers; and subclause (2) prohibits the carrier from
offering for sale transportation to a point outside the au-
thorized area, and serving such a point on a flight that
49a
also serves Love Field. In our view, the plain and literal
meaning of subsection (c) refers to a specific ‘flight,’ and
subclauses (1) and (2), which must logically be read to-
gether (the clauses are joined by the conjunction ‘and ),
describe restrictions applicable to the flight. As further
discussed below, the legislative history is not contrary to
this plain reading; and this reading is not unreasonable.
See. Nat’l Small Shipments Traffic Conference v. CAB,
618 F.2d 819 (D.C. Cir. 1980).
The DFW Parties and Southwest offer a significantly
different reading of the literal words of subsection (c).
Their proffered meaning rests on the assumption that
subclauses (1) and (2) must be read separately. Under
this interpretation, subclause (1) describes a class restric-
tion, prohibiting any carrier that interlines elsewhere on
its system from serving Love Field; while subclause (2)
describes an operational restriction, prohibiting this class
of carrier from serving Love Field beyond Texas and the
four-state area. Thus, the DFW Parties and Southwest
contend that subsection (c)(1) is clear in its terms: a carrier
that conducts any interlining operations is precluded from
offering interstate service at Love. Moreover, under this
interpretation, any conflict between subclauses (1) and
(2) is illusory; since the DFW Parties and Southwest
argue that it is logical to apply subsection (c)(1) univer-
sally, while applying (c)(2) only in connection with op-
erations at Love Field.
The Board rejected this reading of subsection (c) as
unreasonable, finding that provisions of the Amendment
must be read in harmony. Order 80-8-181, at 4 (August
29, 1980). As the CAB stated, to agree with this inter-
pretation of (c)(1) would require a reading of (c)(2) pro-
hibiting an air carrier providing service at Love from
providing any service outside Texas and the four adjacent
states, even operations unconnected with Love Field
50a
service. Id.* This interpretation would be inconsistent
with the statements of the Conference Committee that
carriers providing interstate service at Love were not
precluded from operating outside the five-state area, as
long as through or connecting services to points outside
the area were not offered in connection with the carriers’
Love Field service. Conference Report at 25-26. It is also
inconsistent with the remainder of subsection (c) and the
rest of the Amendment, which envisions and regulates
interstate service at Love Field. Further, the Conference
Report specifically states that carriers’ usual ticketing,
scheduling, and ratemaking practices would not be oth-
erwise affected. Id. To read the subclauses separately
effectively undercuts the Amendment, suggesting that
Congress enacted a self-defeating statute. As the CAB
found, Congress intended that carriers providing interline
services elsewhere on their systems could provide service
at Love Field, as long as they did not provide interline
service to points outside the five-state area in connection
wit
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