Precedent Has Been Set

Mom always said, “Watch what you say.”

When my youngest was two he was halfway through building a Lincoln Log house when dinner was ready; I promised he could finish it after dinner. Two years later, he’s working on another structure … at 11:00 p.m. He casually reminded me that I said it was OK to build stuff after dinner. “Why not now?” he asked. A child’s memory is ironclad; precedent had been set.

I read the Supreme Court’s (SCOTUS) opinion/dissent on the Affordable Care Act (ACA) decision. SCOTUS’s judgment is irrelevant. But how the judgment was reached is relevant because precedent has been set. Read the news, common words and phrases are being stretched like a Silly Putty comic book picture. Political emotions are hobbling normal discourse and will, ultimately, affect the foundations of aviation safety.

It’s a stretch associating a SCOTUS decision with aviation safety. SCOTUS is the Mount Olympus of the courts; it interprets federal law as it is written, deciding if said law is constitutional – as written. SCOTUS can’t rewrite law or assume its writer’s intent. In other words, a Justice can’t say, “Senator Jones wrote this, but I know he meant that.”

SCOTUS is the ‘go-to’ authority; any decision becomes the precedent lower courts point to. A SCOTUS decision is an immovable object; once made cannot be unmade, whether right or wrong. My concern is that the ACA decision was made, not on the intent of what was written, but on interpretation of the author’s intent, despite what was written. Because of this possibility, precedent has been set.

Federal Aviation Regulations

We, in aviation, are governed by federal rules and regulations – written jointly by industry and government; they are words that are subject to interpretation, often by law judges. The Code of Federal Regulations (CFR) are written and approved by the Legislative (Congress) branch and enforced by the Executive branch. A majority of Aviation’s regulations under Title 14 of the CFRs are broken down further into Parts and Subparts, e.g. 43, 65, and 91.

Federal Aviation Regulations usually go through a three-year (minimum) vetting process; Industry, FAA, lawyers, subject matter experts, accountants (yes, yes … accountants), etc. are gathered together to write, comment on and rewrite each new or revised regulation. Every regulation change, even a single word, e.g. ‘should’ to ‘shall’, must go through this laborious and very expensive process, without exception. But what would happen if an aviation law judge reevaluated Congress’s intent? Any regulation or policy would be fair game. Why? Because SCOTUS already did it. Precedent has been set.

Matter of Interpretation

Example: 14 CFR Part 65.71 (a) states: “To be eligible for a mechanic certificate and associated ratings, a person must, (2) Be able to read, write, speak, and understand the English language …” This regulation’s been followed by the aviation community since the Earth cooled.

Scenario: Aviation Law Judge Smith hears a case where a young Ecuadorian man, who only speaks Spanish, was denied an A&P certificate based on 14 CFR Part 65.71 (a) (2). Smith reads the legal brief and finds the young man is a brilliant mechanic. Smith determines that many cities employ Spanish as a second language. By using the ACA decision as a precedent, he can justify tweeking the regulation, saying, “The original rule’s writers couldn’t foresee our multilingual country today. I know they would’ve come to the same conclusion.” The happy young man receives his A&P; Smith is applauded for interpreting the rule’s writers’ intent.

Far-fetched? Maybe, but not impossible. And what will Judge Smith do when a young woman who only speaks Japanese wants the same courtesy? It’s a slippery slope when judges and lawyers step outside of their area of expertise and, even, their purview.

Manipulation of intent

I once investigated an accident where the mechanics interpreted the intent, order and importance of the manufacturer’s maintenance procedure steps. Their interpretations proved fatal; they felt that the manufacturer had meant this … not that; swearing that their decisions were based on professional opinions and years of experience. These promises, however, had no effect on the accident’s outcome: the aircraft was just as destroyed; their careers were just as questionable; families were just as ruined; and the victims were just as dead.

Manipulation of intent has been happening for a long time. For instance, in 1990, the Americans with Disabilities Act was passed to give relief to legitimate people with real handicaps, e.g. blindness. This Act made it possible for those truly handicapped to have their trained service animals accompany them while flying; this included war veterans who need trained emotional support animals.

What followed was, to me, a full blown abuse of 14 CFR Part 382 – Nondiscrimination on the Basis of Handicap in Air Travel, a regulation designed for those with handicaps who deserved and/or earned it. Instead every excuse was twisted to allow Fluffy the Persian cat, et al, to be labeled as an Emotional Support animal. People started corrupting the intent of 14 CFR Part 382, claiming the desire to have their pet fly Coach for their ‘emotional support’ handicap. Again, intent, not wording, was interpreted and precedent had been set. The abuse in this case does three things:  casts doubt on 14 CFR Part 382’s validity, allows selfish people to exploit the regulation, and contributes to a very unsafe environment.

If you ever get the chance to participate in a simulated cabin fire escape drill, DO IT! Trying to find aisle lights in a smoke-filled coach section is not easy; there’s legitimate confusion; you can’t breathe, you can’t see, and you have no idea where in the cabin you are, even though you’re a voluntary participant.

But in a real emergency add an untrained and freaked out Fluffy, hell-bent on survival. The cabin becomes a smoke-filled death chamber, chaos complete with suffocating passengers, screaming and stampeding, blindly tripping over a confused Fluffy.

The door’s now opened for reinterpreting law. Precedent has been set. As Justice Scalia noted in his dissent, “[It’s] pure applesauce.”