RESEARCH Business Government

O’HARE EXPANSION
Plan to enlarge airport violates constitutional law, legal scholar says

Mark Reutter, Business Editor
(217) 333-0568; mreutter@uiuc.edu

4/1/02

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

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

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

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

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

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

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

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

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

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