MWAA’s Murky Constitutional Status

How many angels can dance on the head of a pin?

by James A. Bacon

Is it possible to create an interstate compact when one of the “states” is the District of Columbia, which, in fact, is not a state? To be more specific, is the agreement between the Commonwealth of Virginia and the District of Columbia that creates the Metropolitan Washington Airports Authority a true “interstate” compact, and should it be governed by the same rules as compacts between two actual states?

Dan Scandling, chief of staff for Rep. Frank Wolf, R-10, concedes that the issue is arcane. But the questions have come to the fore in the power struggle over the composition of the Metropolitan Washington Airports Authority (MWAA) board of directors.

Last year Congress passed a law, signed by President Obama, that would expand the MWAA board from 13 members to 17, including two appointees from Virginia. The law also required board members whose terms had expired to step down. (Two board members are currently serving even though their appointments have expired, and that number could increase to three by the end of this month.) The law also empowers appointing executives like Governor Bob McDonnell to remove board members with cause. If enacted, the provisions could lead to a major shake-up of the board.

MWAA has argued that it could not comply until both Virginia and D.C. amended their interstate compact. The United States Constitution gives power to Congress to review and approve compacts between two more states, MWAA contends. But the Constitution is silent on Congress’ authority to amend an interstate compact. The issue has never been addressed by a court, so the MWAA board contends, in effect, that it is exempt from the dictates of Congress.

Scandling disagrees. “It is the law. Period.”

When asked to elaborate, he added, “This. Is. The. Law. The authority knows it.”

The District is a federal entity, he continues, so the agreement between Virginia and D.C. is not an “interstate compact.” Dulles airport sits on federal land. The airport was created by the federal government. There are three federal appointees on the MWAA board. Therefore, MWAA is subject to the power of the federal government.

MWAA was opposed to the governance legislation as it worked its way through Congress. And the very same day Obama signed it into law, Scandling says, MWAA hired an outside law firm to advise the board on how it could avoid complying with the bipartisan law. That firm, Jenner & Block, duly obliged.

Furthermore, Scandling pokes a hole in Jenner & Block’s case. In its 24-page memo, the law firm stated:

In the entire history of interstate compacts, we are unaware of a single instance in which Congress purported to amend or rescind a compact that it had approved. Had Congress intended such path-breaking legislation, it likely would have provided some sign in the legislation or its accompanying materials indicating as such. … No such sign is present. Instead, the Legislation consists of a series of small changes in 49106 that were adopted as part of larger appropriations legislation and that contain no explanatory language indicating an intent to change the terms of the Authority substantially.

But the law firm got it wrong, Scandling maintains. A document accompanying the legislation, referred to as a “report,” does, in fact, provide explanatory language that summarizes the major changes of the law.

However, in possible contradiction of Scandling’s position, the report’s language also includes the following: “The conferees expect the jurisdictions to expeditiously implement these modifications.” That wording that could be interpreted as meaning that some other action from the jurisdictions/states was required to implement the law.

So, who’s right? I’m no lawyer. I checked with the state Attorney General’s office. Here is the response I got from the communications office: “We don’t have anything we can share right now, but I will get back to you as soon as we do.”

Murk alert: It gets even more complicated. A friend offers another twist on this issue. Under the U.S. Constitution, Congress exercises exclusive jurisdiction over the District in “all cases whatsoever.” Although it delegated much of its authority in 1973 to elected city officials under home rule, Congress can revoke that authority at any time. Thus, even if the District refuses to amend the interstate compact, Congress can overrule the mayor and city council.

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  1. larryg Avatar

    My understanding of a Constitutional Compact is basically what I read on Wiki but it indicates that states cannot enter into agreements without approval from Congress.

    but a noise lawsuit against MWAA got into these issues:

  2. DJRippert Avatar

    Jim likes to forget a few things ….

    First, the enabling legislation in Virginia is not yet effective. Even the state that claims the new members MUST be immediately seated couldn’t force itself to pass the legislation on an emergency basis. Instead, the State Senate was split 20 – 20 I believe. Hardly the throaty cry of a state legislature demanding action.

    Second, there seem to be many legitimate Constitutional questions. For example, does DC qualify as a state in the context of an interstate agreement? If you were the MWAA – what would you do? I’d get a legal opinion on the matter – which they did and were promptly criticized for so doing. Then, I’d ask the affected parties. They did and Virginia refused to respond to the question. Given all that, I’d tell the two parties that they need to amend the charter in order to revamp the board – which they have done.

    The MWAA seems to be acting far more responsibly than either the state of Virginia or Frank “the career cicada” Wolf.

    If Virginia didn’t need to amend its MWAA Charter to get the representatives seated, why did it amend that Charter? If the federal government had a clear right to demand the MWAA comply with federal law – regardless of VA or DC agreement then the state should have refused to even consider the issue of charter amendment and the feds should have sued for action. Neither happened.

    This is a murky area. So, what should a prudent management team do when confronted with a murky area? Jump to some random conclusion and just start taking action? Of course not. The right approach is to get the approval from all of the affected parties through proper process – which is EXACTLY what the MWAA is doing.

    Now, if Bob McDonnell or Frank “the career cicada” Wolf actually gave a damn they would call Mayor Gray and ask that DC amend the charter no later than July 1 so this can be put to rest.

    Of course, that would be what a normal person would do. So, I expect the politicians to do the polar opposite.

    1. Don said, “If the federal government had a clear right to demand the MWAA comply with federal law – regardless of VA or DC agreement then the state should have refused to even consider the issue of charter amendment and the feds should have sued for action. Neither happened.”

      Good point. If Virginia didn’t need to amend the interstate charter, why didn’t the AG’s office sue? Why bother going to the trouble of having both D.C. and Virginia amend the charter?

      I don’t feel like I’ve got the full picture yet.

  3. larryg Avatar

    Murky in terms of governance? I think this illustrates just what an out of control agency it is – it’s apparently accountable to almost no one much less citizens or toll payers.

    and what’s this? DJ wants to cut out DC so that the Clown Show in Richmond is totally in charge of MWAA?

    I still don’t understand how an airport authority gets to be in charge of a toll road and a railroad …. how does that happen?

    1. DJRippert Avatar

      Like most entities, the MWAA management is accountable to its board of directors. In turn, the board of directors are elected by the owners or appointed at the onset by founders.

      Virginia and DC “own” the MWAA. However, as the underlying asset owner, the federal government made representation from the feds and Maryland a pre-requisite to allowing the lease of the airports and access road to MWAA. The “owners” agreed to these terms and the compact was established.

      Why is this hard?

      Let’s think like a company. Let’s say LarryG and I want to lease the Washington Monument from the feds. We start a company and demand that each of us have an irrevocable board seat on the company’s board. The feds agree to lease us the monument but they want a board seat and they want Maryland to appoint a board member too. As owners, LarryG and I agree to those terms.

      Putting aside the complexities of share-based votes, the board can only be changed if a majority of the board members agree that it should be changed. If one of the board members demands a unilateral change to the board composition, the board should refuse to implement the change until the process described in the company’s charter occurs. If one of the owners claims they have an over-arching legal right to change the board composition regardless of what the other board members say, the board should ask a lawyer if that’s true. If the lawyer says, “no” or “probably not” then the company should refuse to implement the change until the documented process occurs.

      MWAA was formed by DC and Virginia to lease a federal asset. The feds demanded and got representation for the federal government and Maryland. The bylaws of the MWAA (I assume) require that changes in board composition be approved by both owners and reflected in changes to the charter of the owners and the MWAA. The feds claim they have a unilateral right to demand a change to the composition of the MWAA board and the MWAA’s lawyers say, “no” or “probably not”. So, the MWAA insists that the process described in the bylaws (i.e. both charter members vote and then amend their charters) be followed.

      LarryG lives in a pseudo-communist / dictatorial world where the central government has infinite power over everything. Anything they say should be done must immediately be done. Back here in America, an agreement freely entered into by two parties may only be changed if the two parties agree (assuming that is how they established the bylaws). Virginia has agreed (in its usual, haphazard, inept, slow way). DC has not decided whether to agree or not.

      My strong recommendation would be for Bob McDonnell to lobby Mayor Gray to expedite DC’s decision and put this matter to rest. As a charter signatory to the compact, I assume that DC has rights in the bylaws. The feds believe that the addition of the Rail to Dulles project under MWAA tilts the role of the MWAA somewhat more in Virginia’s direction. Therefore, the feds have suggested that the board composition be changed. One of the two owners (Virginia) agrees. So far, we don’t know what the other owner thinks.

      And … the airport authority got control of the toll road because it is the lease holder for the dirt under the toll road. Do you really think that Imperial Clown Show in Richmond is capable of sufficient foresight to get imminent domain from Rt 66 to Dulles Airport? Please! The airport authority got control of the Rail to Dulles project because the Commonwealth of Virginia willingly and freely gave it that control. Do you really think the Imperial Clown Show in Richmond has the courage to manage what will certainly be a difficult and contentious public works project? Please!

      1. DJRippert Avatar

        eminent, not imminent – spell checker wins again

  4. larryg Avatar

    States cannot form interstate agreements without the approval of the US and of course an agreement among themselves.

    but we’re acting like the Va portion of METRO is separate and independent from the portions that are in DC and Maryland.

    What happens with the Silver Line has significant impacts to the operation of the rest of the system.

    System-wide changes will have to be made to accommodate the expansion.

    and yet.. we’re approaching this like the Silver line is independent and separate and thus a Virginia-only issue.

  5. Peter Galuszka Avatar
    Peter Galuszka

    Not an expert, but DC’s lack of statehood has been a pain in the butt issue for decades. That’s why you have hard right Congressman from Arizona trying to dictate social policy with the city even though his district is thousands of miles away.

    1. DJRippert Avatar

      I agree with you, Peter. DC should be a state. It has more people than six or so other states. It’s residents pay taxes, get drafted, and have all the responsibilities of US citizens. They just don’t have representation.

      One of the few reasons I’d like to see Obama re-elected is that he might see his second term as a good time to address this issue. If DC isn’t big enough on its own, the suburbs in core NoVa and MAryland could be added. Those suburbs are pretty liberal. So, you’d get a 51st state that was very reliably liberal. However, you change the balance in Maryland and Virginia. Virginia would become reliably conservative and Maryland would move from liberal to swing.

      People like me could choose between living in the new state – let’s say “Columbia” – or moving outside the new state into New Virginia or New Maryland. If I liked the way that Columbia was being run, I’d stay here/there. If I didn’t like how Columbia was being run, I’d move to a place I like better.

      Choice – it’s the American way.

      And, best of all, 1 – 2 M people currently under the yoke of the Imperial Clown Show in Richmond would gain their freedom.

  6. larryg Avatar

    “MWAA was formed by DC and Virginia to lease a federal asset. The feds demanded and got representation for the federal government and Maryland. ”

    the Feds did not “demand”. The Constitution expressly prohibits interstate compacts without the concurrence (usually with strings) of the Feds.

    what’s “hard” about this seems to be the difficulty in understanding the Constitution.

    but again – we’re talking about the expansion of one part of a region-wide rail system that was approved by Congress and receives funding from Congress and somehow, we ended up with an Airport Authority involved in the expansion and now we have folks who want the Airport Authority itself to become a Virginia Entity in charge.

    It’s almost like Alice in Wonderland.

    In a saner world, WMATA would be in charge of the rail system and it’s expansions and MWAA would be in charge of the airports – and VDOT or a 3rd Party contractor would be in charge of toll roads.

  7. Darrell Avatar

    Virginia is the odd man out. DC is a political subdivision of the feds. McD may as well stroke the check because the state signed a deal with the devil.

  8. DJRippert Avatar

    “the Feds did not “demand”. The Constitution expressly prohibits interstate compacts without the concurrence (usually with strings) of the Feds.”.

    MWAA leases federal assets. The feds didn’t have to lease the assets to anybody regardless of the Constitution.

    If WMATA were in charge of the project the Tea Pots in Richmond would be howling even louder.

    Do me a favor – read the bios (that are available) of the WMATA board members. Note the differences in background between those appointed by Virginia and DC and those appointed by Maryland and the feds:

    Now, do the same for the MWAA board.

    Once again, The Imperial Clown Show in Richmond has failed to properly serve the citizens of Virginia.

  9. larryg Avatar

    MWAA leases Federal Assets because the Federal Govt wanted an airport authority to do that rather than the FAA do it.

    What changed MWAA from an airport authority into an agency that owns toll roads and builds railroads?

    WMATA ought to be the agency that handles expansions to the system it is already in charge off no matter what the howlers in Richmond think.

    When Richmond “accepted” the MWAA “proposal” to operate DTR, did anyone ask what gave MWAA the authority to do that to start with when their charter was to operate airports?

    This is not about the “bios”of the board members DJ… this is about an agency that has run amok IMHO. Given the logic with letting them buy the DTR, what would prevent them from buying other toll roads and expanding their mission to other parts of METRO?

    As far as I know, we have similarly constituted airport authorities around the country and they all restrict their missions to airports. What happened here?

  10. DJRippert Avatar

    “This is not about the “bios”of the board members DJ… this is about an agency that has run amok IMHO.”.

    You really have lost your way on this one, LarryG.

    I’ll try one more time:

    1. The MWAA operated the Dulles Access Road because it was a road built on land owned by the Feds for the singular purpose of providing access to Dulles Airport. Once you get on the access road you can’t get off until you reach the airport. It is not a local road, it is an airport access road – just like the roads that take you to the rental car lot once you arrive at the airport. The road has no purpose other than access to Dulles Airport.

    2. The federal government is about 10X more forward looking than the Imperial Clown Show in Richmond. So, when the Feds acquired the rights of way for the Dulles Access Rd they also acquired a fairly extensive amount of “buffer space”. Enough space, in fact, to build a second local access road next to the access road dedicated to Dulles Airport. Imaging for a moment how much better off we’d be if the Imperial Clown Show in Richmond did things like that.

    3. VDOT built the Dulles Toll Road on land owned by the Federal Government and leased by MWAA. The road is on the rights of way adjacent to the Dulles Access Road. So, MWAA leased he dirt from the Federal Government and VDOT sub-leased the dirt under the Toll Road from MWAA.

    4. In 2005 five companies provided bids to the Commonwealth of Virginia to privatize the Dulles Toll Road. MWAA provided a sixth bid. THE IMPERIAL CLOWN SHOW IN RICHMOND FREELY AND WILLINGLY GAVE CONTROL OF THE DULLES TOLL ROAD TO THE MWAA.

    5. A big part of the accepted bid from MWAA to the Commonwealth of Virginia was the commitment by MWAA to build the Silver Line in the median strip of the Dulles Toll Road. THE IMPERIAL CLOWN SHOW IN RICHMOND FREELY AND WILLINGLY GAVE CONTROL OF THE PROJECT TO CONSTRUCT THE SILVER LINE TO THE MWAA.

    Now, LarryG, I know you are a huge apologist for the Imperial Clown Show in Richmond. I would be too if the Clown Show were robbing others around the state and using the money to provide me with free services. Unfortunately, I am one of the ones being robbed so I am not much of an apologist. However, if you don’t like the MWAA as a tri-modal transportation agency I would think that even you would have to wonder why The Imperial Clown Show in Richmond gave that agency so much control over roads and projects that exist entirely within the state of Virginia.

    Phase I of the Silver Line appears to be on schedule and on budget. If others have facts to the contrary, I’d like to hear them. In other words, it appears that MWAA is doing a good job so far. This simple fact consistently eludes you, Jim Bacon and all the other whiners.

    The decision to use Dulles Toll Road revenues to fund the Silver Line was may well before MWAA was given control of the project. In Februrary, 2005 the CTB (Clown-Show Transportation Board) approved a 50 cent increase in the Dulles Toll Road tolls to provide funds for the Silver Line. As with everything else done by the Imperial Clown Show in Richmond, this increase was ill-conceived and inept. It was large enough to be frustrating but far too small to actually provide the needed funds for the Silver Line. However, it did set the precedent that Dulles Toll Rd tolls would be increased to provide funding for the Silver Line.

    LarryG – if you want to vent – direct your bile in the right direction. It is not the MWAA that made these decisions, it is the jack asses in Richmond.

  11. larryg Avatar

    No venting DJ… I’m just pointing out that you appear to be an ardent defender of what MWAA does these days and at the same time a heavy critic of the clown show that created them and signed off on their role with regard to toll roads and railroads.

    Conversely, the heavy critics of MWAA seem to not want to acknowledge that MWAA is a willingly-created critter of Richmond ….

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