Jesse Jackson

Mr. JACKSON of Illinois

Mr. JACKSON of Illinois. Mr. Speaker, I intend to support the continuing resolution that is before us today, but I must say that the administration's budget proposal in this body has not lived up to the commitment that we made to leave no child behind. Yesterday, the Census Bureau stated that the proportion of Americans living in poverty rose significantly last year, increasing for the first time in 8 years. At the same time, the Bureau said that the income of middle-class households fell for the first time since the last recession ended, in 1991. In the last 2 years, 2 million more Americans have lost their jobs, and economic growth is at an anemic 1 percent, the slowest growth in over 50 years. What has been the House's answer to this: Tax cuts, the ability to find another $100-200 billion for a possible war in Iraq. A strong economy depends on a strong workforce, and that means educating all Americans and providing them with skills they need to be productive workers. Some Members of Congress seem to have a single focus, and that is keeping America strong abroad. But we have a dual responsibility, keeping America strong abroad and also keeping America strong at home. Education is the key to keeping America strong at home, and that is why I think we must finish our work here before we adjourn for the elections in November. The title I program provides funds for school districts to help disadvantaged children obtain a high-quality education, and at a minimum, to achieve proficiency on challenging academic achievement standards established by the States. The President's request for title I education is $4.56 billion below the $16 billion he supported and Congress supported in the Leave No Child Behind Act. The administration refused to request funding for title I school improvements funds, and last year over 8,600 schools, 10 percent across the country, were identified as failing to meet the State standards. With the additional funds promised by the Leave No Child Behind Act, school districts would have been able to hire an additional 92,000 title I teachers. Mr. Speaker, I urge Members to support this continuing resolution, but let us also focus on the need to fully fund education for our children.

Mr. JACKSON of Illinois

Mr. JACKSON of Illinois. Mr. Speaker, I yield myself such time as I may consume. First, let me begin by thanking the gentleman from Florida (Mr. Mica), the chairman, and the gentleman from Florida (Mr. Lipinski), the ranking member, for their work on H.R. 3479. There are many reasons why I oppose H.R. 3479, none of which have anything to do with them personally. I want to share with my colleagues some reasons why they should be opposed to the National Aviation Capacity and Expansion Act. Mr. Speaker, just a week ago, this House rejected by a small margin this measure. There are a number of bills that we could be considering before the Congress, including saving Social Security, Medicare and Medicaid. There are a number of important measures that could be on the suspension calendar, but what has changed in a week for a bill that was rejected one week ago to be brought back in such short order, back on the noncontroversial suspension calendar? Mr. Speaker, this is a highly controversial bill. This should offend every House traditionalist and institutionalist. It violates the established processes set up by the House of Representatives, and even if my colleagues agree on the substance, they should be against the process. H.R. 3479 should be a stand-alone bill that is fully debated before the House, with the possibility of adding amendments to improve this bill. It should not be on the suspension calendar. Many of my colleagues believe that they are voting to codify, as the gentleman from Florida (Mr. Mica) said an agreement between Mayor Daley and the governor of our State, Governor Ryan, but this bill, the House version of the bill, does not reflect that deal. Their agreement promised priority status for a south suburban airport in Peotone and O'Hare expansion. While I do not support the O'Hare- designed plan that is articulated in the bill, and I do believe in O'Hare modernization, the idea that this bill provides for O'Hare expansion but does not, I repeat, does not, give priority status to Peotone, offends those of us who have been fighting at least for the last 16 years to make aviation capacity and to alleviate the crisis for our entire Nation, a reality for all Americans. Both sides agree that there is a capacity crisis at O'Hare. The disagreement comes over how best to solve it. A new south suburban airport in Peotone offers a faster and cheaper and safer, a cleaner and more permanent solution. What do I mean? I mean that after O'Hare expansion is completed if air travel expands as projected, we will still be in the same capacity crisis that we are in today. This is a 15-year construction project. So why spend more money, take longer, increase environmental problems, put the flying public at greater risk, support a temporary solution and increase the economic and racial divide in Chicago when there is a better way of resolving the current aviation capacity crisis? O'Hare Airport is the economic magnet that provides jobs and economic security for Chicago's north side and northwest suburbs. Midway Airport, housed in the gentleman from Illinois' (Mr. Lipinski) district, is the economic magnet that provides jobs and economic security for Chicago's southwest side. There is no similar economic engine for Chicago's south side and south suburbs. O'Hare expansion puts in 195,000 new jobs and $19 billion of economic activity in an area that already has an overabundance. For example, the biggest beneficiary of O'Hare is Elk Grove Village, a city of 35,000 people where over 100,000 people come to work every day. That is three jobs for every one person. The greatest beneficiary of O'Hare, Mayor Craig Johnson of Elk Grove Village, is one of the biggest supporters of Peotone. By contrast, some communities in my district have 60 people for every one job. Finally, it just so happens that the areas where O'Hare and Midway Airports are located are primarily where whites live. African Americans live primarily south and in the south suburbs, but African American families need economically stable families and communities that have a future and can send their children to college, too. We need greater economic balance in the Chicago metropolitan area so that all of the people have jobs and economic security. The gentleman from Illinois (Mr. Lipinski) says that 15 environmental groups, including the Sierra Club, support the language in this bill. He, of course, is implying that they have endorsed it. The gentleman from Illinois (Mr. Lipinski) knows better. They have not endorsed it. I also asked the gentleman from Illinois (Mr. Lipinski) to supply me with the names of the other environmental groups who he says support the language in this bill, and he has failed to do so. O'Hare is already the largest polluter in the Chicago area. Doubling the number of flights into the 7,000 acres that houses O'Hare means pollution levels will explode. A recent study found there was an excess of 800 new incidences of cancer each year, over and above what would be expected based on the State's average, in eight northeastern communities downwind of O'Hare. Peotone's 24,000 acre site has a built- in environmental safety zone. Mr. Speaker, the O'Hare expansion plan is obviously anti-consumer. Two airlines, American and United, control 90 percent of the flights in and out of O'Hare. It is a duopoly, and due to a lack of competition, fares at O'Hare continue climbing at faster than the national average. Mr. Speaker, I do want to address the constitutional issue before I reserve the balance of my time. The United States Supreme Court stated in Printz versus United States decision in 1997 that dual sovereignty is incontestable, to preemp State law, that is, the Illinois Aeronautics Act, and give power to the city of Chicago and the city of Chicago's ability to come directly to the Federal Government for the purposes of expanding O'Hare airport. The Printz versus United States decision emphasized that that is a constitutional structural barrier to Congress intruding on a State's sovereignty, and this structural barrier could not be avoided by claiming that constitutional authority was, A, pursuant to the commerce power clause. We have heard the gentleman from Florida (Mr. Mica) talk about the number of jobs and the fact this is a factor in our economy. It will create 195,000 jobs, $19 billion in economic activity pursuant to the commerce power. According to Printz versus the United States these arguments are not available to the chairman of the committee. The necessary and proper clause of the Constitution, we have heard there is an aviation capacity crisis, that this bill seeks to alleviate. According to the Printz versus the United States, Congress cannot use the necessary and proper clause argument as a basis for preempting State law. Last but not least, Printz versus the United States said that the Federal law preempted State law under the Supremacy Clause, that Congress can use its power to solve impasses, that should be solved at the local level in the city of Chicago and in the State of Illinois. In other words, Mr. Speaker, all of the arguments that we have heard, including the arguments of my good friend, the chairman, are all unconstitutional according to Printz versus the United States, and whether my colleagues agree with my constitutional interpretation or not, because there is a legitimate constitutional interpretive disagreement that is taking place, this can only be solved in Federal court, which means the idea of expanding aviation capacity in northern Illinois is likely to be tied up in the Federal courts for a number of years, and therefore, we will not be expanding aviation capacity as the chairman and as the ranking member seek to do. Therefore, Mr. Speaker, I urge my colleagues to reject this bill. It could be improved if it were brought in the regular order and amendments were allowed to include the faster, cheaper, safer and cleaner proposal, building a third airport in Peotone. Mr. Speaker, I reserve the balance of my time.

Mr. JACKSON of Illinois. Mr. Speaker, may I inquire as to how much time we have remaining.

Mr. JACKSON of Illinois. I thank the Speaker.

Mr. JACKSON of Illinois. I asked that the gentleman from Illinois (Mr. Hyde) have 10 minutes, Mr. Speaker, and then the gentleman from Illinois (Mr. Crane) had 2 minutes. That should leave me 10 minutes, Mr. Speaker.

Mr. JACKSON of Illinois. Mr. Speaker, I have not often come to the floor of this Congress to talk about the racial divide in the city of Chicago; but when I do, it is very serious business because I do not want to take lightly the implications of what Members of Congress are going to vote on today. This bill will greatly exacerbate what the New York Times has referred to as the most segregated city in Chicago. I guess, Mr. Speaker, I want to draw the relationship with this chart between those comments and what the demographic shifts are actually showing in Chicago. When John F. Kennedy inaugurated O'Hare Airport in the early sixties, you see that the center of economic activity in this first map is in central downtown Chicago. As a result of O'Hare Airport and our economy moving from an industrial-based economy to a service-based economy, we see tremendous economic growth by 1980 in the northwestern suburban area. In the meantime, the south side of Chicago and the south suburbs is experiencing zero to negative growth. By 1990, O'Hare Airport, well into Du Page County, Kane County, McHenry County, and Lake County, Illinois, end up being responsible, for every three jobs that exist in our area, three of them can be found in the northwestern suburbs per one person. Under a build scenario for the south suburban airport, which is why I am here, the Second Congressional District of Illinois extends from 71st and Yates all the way to Will County, to the county line and just beyond the county line. The south suburban airport under a 2020 build scenario allows the balancing of growth between the northwest suburban areas and the south suburban areas, with Chicago being the overwhelming beneficiary of that balanced economic growth. Without that airport, under a 2020 no-build scenario, south Cook County becomes increasingly reliant upon government services, welfare, various forms of section 8 housing, and other programs. And so when we debate aviation capacity and the opportunity to expand aviation in northeastern Illinois and build an airport on the south side of Chicago and the south suburbs, Mr. Speaker, it is our goal to solve a longstanding problem. Consistent with the gentleman from Indiana (Mr. Visclosky), I too support modernization at Gary Airport. I do support modernization at Rockford Airport. But, Mr. Speaker, the deal between the Governor of the State of Illinois and the mayor of the city of Chicago was to add priority status to the building of a south suburban airport in Peotone, Illinois. This legislation does not reflect that deal. That deal is better reflected by the Senate version of the bill offered by Mr. Durbin where the Peotone language is given priority status. And so why the gentleman from Illinois (Mr. Lipinski) stands here, my good friend, and advocates that this bill is reflective of the deal but removes the priority status that by 2020 will alleviate the racial, social and economic tensions that exist in our region is a factor is why some of us are so adamantly opposed to O'Hare expansion without building this south suburban airport at least first and as a priority. I agree that there must be some modernization at O'Hare Airport. I disagree that we must tear up five runways at O'Hare and build an additional eight runways at O'Hare Airport as the solution. This area already has sufficient economic activity and jobs. Bring jobs and growth to the south side of Chicago that only a service-based economy can build. Mr. Speaker, it is not just about airports. With airports come Hyatt and Hilton and Fairmont and UPS and Federal Express and every other ancillary business that requires moving cargo in and out of aviation facilities. Those jobs are badly needed not just in the northwest suburbs. They are also needed on the south side of Chicago and in the south suburbs. That is why bringing this bill to the floor in regular order, allowing those of us who have been advocating for this bill and advocating for expansion of aviation capacity in the regular order that we might amend it and ensure that our interests are protected is a factor is why we are disappointed and many of us, namely myself I know for a fact, are going to vote against this bill. Certainly the gentleman from Illinois (Mr. Weller) says that he hopes these issues will be worked out in conference. Mr. Speaker, the mayor of the city of Chicago's father wanted to expand aviation capacity by building a third airport on Lake Michigan. The mayor himself wanted to build one in Lake Calumet. Only when the idea came about to build it in south suburban Peotone where he did not control it did he oppose it. And so, Mr. Speaker, I am asking for the justice of this House to vote down this bill because it is controversial, and it has implications 20 years from now for the quality of life for people that I represent. Give us a chance to offer amendments in the regular order and not on suspension. Mr. Speaker, I reserve the balance of my time.

Mr. JACKSON of Illinois. Mr. Speaker, I yield myself 4\3/4\ minutes. (Mr. JACKSON of Illinois asked and was given permission to revise and extend his remarks.)

Mr. JACKSON of Illinois. Mr. Speaker, I just have one final speaker; so we will continue to reserve the balance of our time if that is okay.

Mr. JACKSON of Illinois. Mr. Speaker, the gentleman from Florida (Mr. Mica) has the right to close. The gentleman from Illinois (Mr. Lipinski) needs to exhaust the balance of his time and then we will exhaust the balance of ours and we will give it to the gentleman from Florida (Mr. Mica).

Mr. JACKSON of Illinois. Mr. Speaker, I yield myself 1\1/2\ minutes. Mr. Speaker, this is a Rand McNally map of Chicago. It is called the Rand McNally Chicago Easy Finder Map. And in this map it has all of the northwest suburbs in it, it has most of the city of Chicago, it has some of the southwest suburbs, but it stops here at 55th Street, right here at the Museum of Science and Industry. My district does not even start until 71st Street, and then it proceeds almost 40 miles outside the city of Chicago. Mr. Speaker, it is as if the city of Chicago stops right there where all of the tourists and where all of the economic activity is without any consideration of the south suburbs. Mr. Speaker, I brought with me some of the many books that document the damaging effects of Chicago's persistent disparities between north and south. Let me read a passage of just one of these titled When Work Disappears by noted University of Chicago and Harvard University Professor William Julius Wilson. Professor Wilson writes, ``Over the last two decades, 60 percent of the new jobs created in the Chicago metropolitan area have been located in northwest suburbs of Cook and DuPage County surrounding O'Hare Airport. African-Americans constitute less than 2 percent of the population in these areas.'' He concluded, ``The metropolitan black poor are becoming increasingly isolated.'' Let us not add to this hefty volume. Let us not continue to perpetuate and exploit this divide. Let us regulate all of these books to the history section and begin our own new chapter of balanced economic growth and justice in Chicago. Mr. Speaker, I urge a no vote on this bill. It is an unprecedented act that undermines our State's ability to determine our State's future. Mr. Speaker, I include for the Record the following remarks: Mr. Speaker, I rise in opposition to H.R. 3479. Votes on the suspension calendar are supposed to be, by definition, non-controversial. But to argue that H.R. 3479 is non-controversial is like arguing that the elimination of estate taxes, gun control legislation, a patients bill of rights, and prescription drug benefits for seniors should all be on the suspension calendar. H.R. 3479 is one of the most controversial bills to come before the House this year. It has been extremely controversial in Chicago, in the northwest suburbs, in Illinois generally, in the Illinois congressional delegation(our two U.S. Senators are divided over it), in all House and Senate Committees, in the full Senate, and, if a full debate were held on the House floor today, the nation would see just how controversial this bill is. This bill has already been delayed in the Senate with one virtual filibuster--and it will be subjected to every parliamentary and tactical maneuver possible to try to stop it when it comes before the senate again. Hardly non-controversial! To tear down and rebuild O'Hare will cost taxpayers three times as much money as it will cost to build a third South Suburban airport-- $15-20 billion (not the $6.6 billion generally used) versus $5-7 billion. This bill is hardly non-controversial for taxpayers! Tearing down and rebuilding O'Hare is estimated to take 15-20 years, assuming ti proceeds on schedule, without lawsuits--not likely--while building a new South Suburban Airport would take five years, it would expand thereafter as need arises, and would be a more permanent solution to the capacity crisis. When the new O'Hare is completed, we will be in the same position we are today with regard to the air capacity crisis. How is that not controversial? This bill will double the noise pollution in the suburban communities surrounding O'Hare. It is hardly non-controversial in the polluted northwest suburbs of Chicago. Doubling the traffic in the air space around O'Hare from 900,000 to 1.6 million operations will make flying into O'Hare less safe for the public--hardly noncontroversial for the flying public. This bill will increase environmental pollution--O'Hare is already the number one polluter in Illinois--hardly non-controversial for those having to live in the increased pollution. The Chicago Tribune won a Pulitzer Prize for documenting ``sleaze'' surrounding the City of Chicago and past O'Hare construction, vender, and service contracts. By passing this bill--and removing the Illinois Aeronautics Law and by-passing the Illinois General Assembly--we are virtually sanctioning more ``sleaze'' to be found around O'Hare construction, vender, and service contracts. Since when has such potential ``sleaze'' become non-controversial for Congress. I don't consider the Federal Government running over any future Governor of Illinois, the Illinois General Assembly, the Illinois Aeronautics Law, and the 10th Amendment of the U.S. Constitution--to build an airport--non-controversial. Finally, we're already finding out how controversial this bill is as Judge Hollis Webster on July 9, 2002, stopped the City of Chicago from running rough-shod over their northwest suburban neighbors by illegally trying to buy up and tear down their homes and businesses to make room for O'Hare expansion. This is just one of many controversial lawsuits that have been and will be filed in the future if this bill passes and becomes law. How is tearing down and rebuilding O'Hare--which will be three times as expensive, take three times longer, be less protective of the environment, make the skys less safe, and be a less permanent solution than building a third airport--non-controversial? I say, solve the current air capacity crisis by building Peotone first, faster, cheaper, and safer, then evaluate what needs to be done with O'Hare. H.R. 3479 fall woefully short of providing an adequate, equitable solution. Please know that I do not oppose fixing the current air capacity crisis surrounding O'Hare. But I have many, many grave concerns about this specific expansion plan. Concerns about cost. About safety. About environmental impact. About federal precedence--and I associate myself completely with the remarks of my good friend, Mr. Hyde. Although I oppose this bill for many reasons, I rise today to discuss an important element of this bill--constitutionality. The attempt to rebuild and expand O'Hare Airport--Congress is inappropriately violating the Tenth Amendment. In other contexts--specifically with regard to certain human rights-- I believe that the Tenth Amendment serves to place limitations on the federal government with which I disagree. Indeed, in the area of human right, I believe new amendments must be added to the Constitution to overcome the limitations of the Tenth Amendment. However, building airports is not a human right. Therefore, in the present context, I agree that building airports is appropriately within the purview of the states. I believe attempts by Congress to strip the authority of Governor Ryan and the Illinois Legislature over the delegation and authorization to Chicago of state power to build airports--along with the authority of governors and state legislatures in a host of other states such as Massachusetts (Logan), New York (LaGuardia and JFK), New Jersey (Newark), California (San Francisco airport), and the State of Washington (Seattle)--raise serious constitutional questions. Under the framework of federalism established by the federal constitution, Congress is without power to dictate to the states how the states delegate power--or limit the delegation of that power--to their political subdivisions. Unless and until Congress decides that the federal government should build airports, airports will continue to be built by states or their delegated agents (state political subdivisions or other agents of state power) as an exercise of state law and state power. Further compliance by the political subdivision of the oversight conditions imposed by the State legislature as a condition of delegating the state law authority to build airports is an essential element of that delegation of state power. If Congress strips away a key element of that state law delegation, it is highly unlikely that the political subdivision would continue to have the power to build airports under state law. The political subdivision's attempts to build runways would likely be ultra vires (without authority) under state law. Under the Tenth Amendment and the framework of federalism built into the Constitution, Congress cannot command the States to affirmatively undertake an activity. Nor can Congress intrude upon or dictate to the states, the prerogatives of the states as to how to allocate and exercise state power--either directly by the state or by delegation of state authority to its political subdivisions. As states by the United States Supreme Court: [T]he Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States. . . . We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. New York v. United States, 505 U.S. 144, at 166 (1992) (emphasis added) It is incontestable that the Constitution established a system of ``dual sovereignty.'' Printz v. United States, 521 U.S. 898, 981 (1997) (emphasis added) Although the States surrendered many of their powers to the new Federal Government, they retained ``a residuary and inviolable sovereignty,'' The Federalist No. 39, at 245 (J. Madison). This is reflected throughout the Constitution's text. Residual state sovereignty was also implicit, of course, in the Constitution's conferral upon Congress of not all governmental powers, but only discrete, enumerated ones, Art. I, Sec. 8, which implication was rendered express by the Tenth Amendment's assertion that ``[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'' Id at 918-919. This separation of the two spheres is one of the Constitution's structural protections of liberty. ``Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a health balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front. Id at 921 quoting Gregory v. Ashcroft, 501 U.S. 452 at 458 (1991) The Supreme Court in Printz went on to emphasize that this constitutional structural barrier to the Congress introducing on the States' sovereignty could not be avoided by claiming either (a) that the congressional authority was pursuant to the Commerce Power and the ``necessary and proper clause of the Constitution or (b) that the federal law ``preempted'' state law under the Supremacy Clause. 521 U.S. at 923-924. It is important to note that Congress can regulate--but not affirmatively command--the states when the state decides to engage in interstate commerce. See Reno v. Condon, 528 U.S. 141 (2002). Thus in Reno, the Court upheld an act of Congress that restricted the ability of the state to distribute personal drivers' license information. But Reno did not involve an affirmative command of Congress to a state to affirmatively undertake an activity desired by Congress. Nor did Reno involve (as proposed here) an intrusion by the federal government into the delegation of state power by a state legislature--and the sate legislature's express limits on that delegation of state power--to a state political subdivision. H.R. 3479 would involve a federal law which would prohibit a state from restricting or limiting the delegated exercise of state power by a state's political subdivision. In this case, the proposed federal law would seek to bar the Illinois Legislature from deciding the allocation of the state's power to build an airport or runways--and especially the limits and conditions imposed by the State of Illinois on the delegation of that power to Chicago. The law is clear that Congress has no power to intrude upon or interfere with a state's decision as to how to allocate state power. A state's authority to create, modify, or even eliminate the structure and power of the state's political subdivision--whether that subdivision be Chicago, Bensenville, or Elmhurst--is a matter left by our system of federalism and our federal Constitution to the exclusive authority of the states. As stated by the Seventh Circuit in Commissioners of Highways v. United States, 653 F.2d 292 (7th Cir. 1981) (quoting Hunter v. City of Pittsburgh, 207 U.S. 161, 178 (1907)): Municipal corporations are political subdivisions of the State, created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them. For the purpose of executing these powers properly and efficiently they usually are given the power to acquire, hold, and manage personal and real property. The number, nature and duration of the powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the State. . . . The State, therefore, at its pleasure may modify or withdraw all such power, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the State is supreme, and its legislative body, conforming its action to the state constitution, may do as it will, unrestrained by any provision of the Constitution of the United States. Commissioners of Highways, 653 F.2d at 297 Chicago has acknowledged that Illinois has delegated its power to build and operate airports to its political subdivisions by express statutory delegation. 65 ILCS 5/ 11-102-1, 11-102-2 and 11-102-5. These state law delegations of the power to build airports and runways are subject to the Illinois Aeronautics Act requirements--including the requirement that the State approve any alterations of the airport--by their express terms. Any attempt by Congress to remove a condition or limitation imposed by the Illinois Legislature on the terms of that state law delegation of authority would likely destroy the delegation of state authority to build airports by the Illinois Legislation to Chicago--leaving Chicago without delegated state legislative authority to build runways and terminals at O'Hare or midway. The requirement that Chicago receive a state permit is an express condition of the grant of state authority and an attempt by Congress to remove that condition or limitation would mean that there was no continuing valid state delegation of authority to Chicago to build airports. Chicago's attempts to build new runways would be ultra vires under state law as being without the required state legislative authority. Clearly this bill sets dangerous precedence by stating that Congress--not the FAA, not Departments of Transportation, not aviation experts--but Congress shall plan and built airports. Further, it ignores the 10th Amendment to the U.S. Constitution. It guts and/or undermines state laws and environmental protections. And it sidesteps the checks-and-balances and the public hearing process. My focus today is the same as it's always been. Finding the best fix. And that best fix is the construction of a third Chicago airport near Peotone, Illinois. The plain truth is Peotone could be build in one-third the time at one- third the cost. For taxpayers and travelers, it's a no-brainer. Unfortunately, this bill mandates expansion of O'Hare yet pays mere lip service to Peotone. It puts the projects on two separate and unequal tracks. That is my opinion. That is also the opinion of the Congressional Research Service, whose analysis I will provide for the record. What we don't need at this critical juncture is favoritism or interference from politicians and profit-oriented airlines to stack the deck against Peotone. What we don't need is a bill that increases the likelihood of a constitutional challenge that prolongs the debate and delays the fix. Thus, I urge members to reject this unprecedented, unwise, and unconstitutional bill. Ronald D. Rotunda, University of Illinois College of Law, Champaign, IL, March 1, 2002. Re Proposed federal legislation granting new powers to the city of Chicago. Hon. Jesse L. Jackson, Jr., House of Representatives, Washington, DC. Dear Congressman Jackson. As you know, I serve as the Albert E. Jenner Professor of Law at the University of Illinois Law School. I have authored a leading course book on Constitutional Law. In addition, I co-author, along with my colleague John Nowak, the widely-used multi-volume Treatise on Constitutional Law, published by West Publishing Company. In addition to my books, I have taught and researched in the area of Constitutional Law since 1974. I have been asked to give my opinion on the constitutionality of proposed federal legislation entitled ``National Aviation Capacity Expansion Act,'' identical versions of which have been introduced in both the Senate and the House of Representatives by Senator Durbin and Congressman Lipinski (S. 1786, HR 3479), hereafter the ``Durbin-Lipinski legislation.'' The Durbin-Lipinski legislation seeks to enact Congressional approval of a proposal to construct a major alteration of O'Hare Airport in Chicago. While this legislation focuses on Chicago and the State of Illinois, the issues raised by the legislation have serious constitutional implications for all 50 States. There are two key components of the legislation that have been the subject of my examination. First Section 3(a)(3) attempts to give the City of Chicago (a political subdivision and instrumentality of the State of Illinois) the legal power and authority to build a proposed major alteration of O'Hare even though state law does not authorize Chicago to build the alteration without first receiving a permit from the State of Illinois. Chicago, as a legal entity, is entirely a creation of state--not federal law--and Chicago's authority to build airports is essentially an exercise of state law power delegated to Chicago by the Illinois General Assembly. The requirement that Chicago first obtain a state permit is an integral and essential element of that delegation of state power. The U.S. Constitution prohibits Congress (1) from invading and commandeering the exercise of state power to build airports, and (2) from changing the allocation of state-created power between the State of Illinois and its political subdivisions. The U.S. Constitution, in short, prohibits Congress from essentially rewriting state law dealing with the delegation of state power by eliminating the conditions, restrictions, and prohibitions imposed by the Illinois General Assembly on that delegation. These constitutional restrictions on Congress' power--which prohibit Congress from requiring states to change their state laws governing cities--are often termed Tenth Amendment restrictions. Similarly, the provisions of Section 3(f) of the proposed Durbin-Lipinski legislation are necessarily conditioned upon the existence of state law authority of Chicago to enter into agreements for a third party (the FAA) to alter O'Hare without first obtaining a permit from the State of Illinois. But Chicago has no state law authority (under the delegation of state power to build and alter airports) to enter into an agreement to engage in a massive alteration of O'Hare without a state permit. Congress cannot confer powers on a political subdivision of a State where the State has expressly limited its delegation of state power to build airports to require a state permit. Congress has no constitutional authority to create powers in an instrumentality of State law (Chicago) when the very authority and power of Chicago to undertake the actions proposed by Congress depends on compliance with--and is contrary to--the mandates of the Illinois General Assembly. For the reasons discussed below, it is my opinion that the proposed legislation is unconstitutional. Summary of Analysis The following is a summary of my analysis: 1. Under the governing United States Supreme Court decisions of New York v. United States and Printz v. United States, which are discussed below, the proposed legislation is not supported by any enumerated power and thus violates the limitations of the Tenth Amendment of the Constitution. In these decisions, the Supreme Court held that legislation passed by Congress, purportedly relying on its exercise of the Commerce Power (nuclear waste legislation in New York and gun control legislation in Printz) was unconstitutional because the federal laws essentially commandeered state law powers of the States as instrumentalities of federal policy. 2. The same constitutional flaws afflict the proposed Durbin-Lipinski legislation. Central to the Durbin-Lipinski legislation are two provisions [sections 3(a)(3) and 3(f)] that purport to empower or authorize Chicago (a political instrumentality of the State of Illinois, and thus a city that has no authority or even legal existence independent of state law) to undertake actions for which Chicago has not received any delegation of authority from the State of Illinois and that, in fact, are directly prohibited by Illinois law when the conditions and limitations of the State delegation of authority have not been satisfied. 3. Under Illinois law, Chicago (like any other political subdivision of a State) has no authority to undertake any activity (including constructing airports) without a grant of state authority from the State of Illinois. Under Illinois law, actions taken by political subdivisions of the State (e.g., Chicago) without a grant of authority from the State, or actions taken by political subdivision in violation of the conditions, limitations or prohibitions imposed by the State in delegating the state authority, are plainly ultra vires, illegal, and unenforceable. The City of Chicago is a creature of state law, not federal law. 4. The power exercised by any state political subdivision (e.g., the power to construct airports) is in reality a power of the State--not inherent in the existence of the political subdivision. For the political subdivision to have the legal authority to exercise that state power, there must be a delegation of that state power by the State to the political subdivision. Further, it is axiomatic that any such delegation of state power to a political subdivision must be exercised in accordance with the conditions, limitations, and prohibitions accompanying the State's delegation of that power. 5. In the case of airport construction, the Illinois General Assembly has enacted a statute that delegated to Chicago (and other municipalities) the state law power to construct airports explicitly and specifically subject to certain limits and conditions that the General Assembly imposed. One basic requirement is that Chicago must first comply with all of the requirements of the Illinois Aeronautics Act--including the requirement that Chicago first receive a permit (a certificate of approval) from the State of Illinois. the Illinois General Assembly has expressly provided that municipal construction or alteration of an airport without such a state permit is unlawful and ultra vires. 6. Section 3(a)(3) of the Durbin-Lipinski legislation expressly authorizes Chicago to proceed with the ``runway redesign plan'' (a multi-billion dollar modification of O'Hare) without regard to the clear delegation limitations and prohibitions imposed by the Illinois General Assembly on the state statutory delegation to Chicago of the state law power to construct airports. Illinois law explicitly says Chicago has no state law authority to build or alter airports without first complying with the Illinois Aeronautics Act, including the state permitting requirements of Sec. 47 of that Act. Even though Chicago (a political creation and instrumentality of the State of Illinois) has no power to build or modify airports (a state law power) unless Chicago obtains State approval, Section 3(a)(3) purports to infuse Chicago (which has no legal existence independent of state law) with a federal power to build airports and to disregard Chicago's fundamental lack of power under state law to undertake such actions (absent compliance with state law). Like New York v. United States and Printz v. United States the proposed Durbin-Lipinski legislation involved Congress attempting to use a legal instrumentality of a State (i.e., the state power to build airports exercised through its delegated state-created instrumentality, the city of Chicago) as an instrument of federal power. As the Supreme Court held in New York and Printz, the Tenth Amendment--and the structure of ``dual sovereignty'' it represents under our constitutional structure of federalism--prohibits the federal government from using the Commerce power to conscript state instrumentalities as its agents. 7. Similar problems articulated in New York and Printz fatally afflict Section 3(f) of the proposed Durbin-Lipinski legislation. That section provides that, if (for whatever reason) construction of the ``runway design plan'' is not underway by July 1, 2004, then the FAA Administrator (a federal agency) shall construct the ``runway redesign plan'' as a ``Federal Project''. But, Section 3(f)(1) then provides that this ``federal project'' must obtain several agreements and undertakings from Chicago--agreements and undertakings that are controlled by state law, which limits Chicago's authority to enter into such agreements or accept such undertakings. Chicago has no authority under the state law (which confers upon Chicago the state power to construct airports) to enter into agreements with any third party (be it the United States or a private party) to make alterations of an airport without the state permit required by state statute. Thus, Chicago has no authority under state law to enter into an agreement with the FAA Administrator to have the runway redesign plan constructed by the Federal government because Chicago has not received approval from the State of Illinois under the Illinois Aeronautics Act--a specific condition and prohibition of the delegation of state power (to build airports) to Chicago by the Illinois General Assembly. Just as Chicago (a creation and instrumentality of the State of Illionis) has no power or authority under state law (absent compliance with the Illinois Aeronautics Act) to enter into an agreement for the FAA to construct the runway redesign plan, Chicago also has no power or authority (absent compliance with the Illinois Aeronautics Act) to enter into the other agreements provided for in Sections 3(f)(1)(B) of the Durbin-Lipinski legislation. Again, Section 3(f) is an attempt to have Congress use the Commerce power to conscript state instrumentalities as its agents. Instead of Congress regulating interstate commerce directly (which both New York v. United States and Printz allow), the Durbin-Lipinski legislation seeks to regulate how the State regulates one of its cities (which both New York v. United States and Printz do not allow). 8. The Durbin-Lipinski legislation is not a law of ``general application''. There is a line of Supreme Court decisions which allow Congress to use the Commerce Power to impose obligations on the States when the obligations imposed on the States are part of laws which are ``generally applicable'' i.e., that impose obligations on the States and on private parties alike. See e.g., Reno v. Condon, 528 U.S. 141 (2000) (Federal rule protecting privacy of drivers' records upheld because they do not apply solely to the State), South Carolina v. Baker, 485 U.S. 505 (1988); (state bond interest not immune from nondiscriminatory federal income tax); Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, (1985) (law of general applicability, binding on States and private parties, upheld). But these cases have no application where, as here and in New York and Printz, the Congressional statute is not one of general applicaiton but a specifically directed at the States to use state law instrumentalities as tools to implement federal policy. Here the Durbin-Lipinski legislation is doubly unconstitutional, because it does not apply to private parties or even to all States but only to one State (Illinois) and its relationship to one city (Chicago). The Durbin-Lipinski legislation proposes to use Chicago (an instrumentality of state power whose authority to construct airports is an exercise of state power expressly limited and conditioned on the limits and prohibitions imposed on that delegation by the Illinois legislature) as a federal instrumentality to implement federal policy. Congress is commandeering a state instrumentality of a single State (Illinois) against the express statutory will of the Illinois Legislature, which has refused to confer on Chicago (an instrumentality of the State) the state law power and authority to build airports unless Chicago first obtains a permit from the State of Illinois. This is an unconstitutional use of the Commerce Power under the holdings New York and Printz and does not fall within the ``general applicability'' line of cases such as Reno v. Condon, South Carolina v. Baker, and Garcia. analysis Before discussing any further the specific provisions of the Durbin-Lipinski legislation, let us review some important background law. A. The basic legal principles Cities are Creatures of the States and State Law--Not Instrumentalities of Federal Power. Normally, this controversy surrounding the proposed expansion of O'Hare Airport would be left to the state political process. Under Illinois law, the cities in this state have only the power that the State Constitution or the legislature grants to them, subject to whatever limits the State imposes. This legal principle has long been settled. Nearly a century ago, the U.S. Supreme Court, in Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907) held that, under the U.S. Constitution, cities are merely creatures of the State and have only those powers that the State decides to give the, subject to whatever limits the States choose to impose: ``This court has many times had occasion to consider and decide the nature of municipal corporations, their rights and duties, and the rights of their citizens and creditors. [Citations omitted.] It would be unnecessary and unprofitable to analyze these decisions or quote from the opinions rendered. We think the following principles have been established by them and have become settled doctrines of this court, to be acted upon wherever they are applicable. Municipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the state as may be [e]ntrusted to them. . . . The number, nature, and duration of the powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the state. . . . The state, therefore, at its pleasure, may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the state is supreme, and its legislative body, conforming its action to the state Constitution, may do as it will, unrestrained by any provision of the Constitution of the United States.'' Hunter held that a State that simply takes the property of municipalities without their consent and without just compensation did not violate due process. While Hunter is an old case, it still is the law, and the Seventh Circuit recently quoted with approval the language reprinted here. The Illinois Aeronautics Act Expressly Limits Chicago's Power to Build and Alter. The State of Illinois has delegated to Chicago the power to build and alter airports. But that power is expressly limited by the requirement that Chicago must comply with the Illinois Aeronautics Act. And the Illinois Aeronautics Act provides that Chicago has no power to make ``any alteration'' to an airport unless it first obtains a permit, a ``certificate of approval,'' from the State of Illinois. Finally, Chicago has not obtained this certificate of approval. That fact is what has led to the proposed federal intervention. B. The federalism problem As mentioned above, section 3(a)(3) of the proposed federal law overrides the licensing requirements of Sec. 47 of the Illinois Aeronautics Act. This section states: ``(3) The State shall not enact or enforce any law respecting aeronautics that interferes with, or has the effect of interfering with, implementation of Federal policy with respect to the runway redesign plan including sections 38.01, 47, and 48 of the Illinois Aeronautics Act.'' In addition, section 3(f) authorizes Chicago to enter into an agreement with the federal government to construct the O'Hare Airport expansion. This project is called a ``Federal project,'' but Chicago must agree to construct the ``runway redesign as a Federal Project,'' and Chicago provides the necessary land, easements, etc., ``without cost to the United States.'' What this proposed legislation does is authorize the City of Chicago to implement an airport expansion approved by the Administrator of the Federal Aviation Administration. But, under state law, Chicago cannot expand O'Hare because it does not have the required state permit. There is no doubt that the O'Hare Airport is a means of interstate commerce, and Congress may certainly impose various rules and regulations on airports, including O'Hare. Congress, for example, may decide to require airport security and require that the security agents be federal employees. Or, Congress could provide that it would build and takeover the O'Hare Airport and construct expansion if the State of Illinois refused to do so. Congress may also use its spending power to take land by eminent domain and then construct or expand an airport, no matter that the state law provides. The limits on the spending clause are few. But, the proposed law does not take such alternatives. It does not impose regulations on airports in general, nor does it exercise the very broad federal spending power. Nor does the proposed law authorize the federal government take over ownership and control of O'Hare Airport. Instead, it seeks to use an instrumentality of state power (i.e., the state law power to build airports as delegated to a state instrumentality, the city of Chicago) as an exercise of federal power. The proposed federal law is stating that it is creating a federal authorization or empowerment to the City of Chicago to do that which state law provides that Chicago may not do-- expand O'Hare Airport without complying with state laws that create the City of Chicago and delegate to it certain limited powers that can be exercised only if within the limits of the authorizing state legislation. New York v. United States The proposed federal law is very similar to the law that the Supreme Court invalidated a decade ago in New York v. United States. The law that New York invalidated singled out states for special legislation and regulated that states' regulation of interstate commerce. The proposed Durbin- Lipinski legislation singles out a State (Illinois) for special legislation and regulates the State's regulation of interstate commerce dealing with O'Hare Airport. While the law in this area has shifted a bit over the last few decades, it is now clear that Congress can use the Interstate Commerce Clause to impose various burdens on States as long as those laws are ``generally applicable.'' The federal law may not single out the State for special burdens. For example, Congress may impose a minimum wage on state employees in, or affecting, interstate commerce as long as Congress imposes the same minimum wage requirements on non-state workers in, or affecting, interstate commerce. Congress can regulate the States using the Commerce Clause if it imposes requirements on the States that are generally applicable--that is, if it imposes the same burdens on private employers. Congress cannot single out the States for special burdens; it cannot commandeer or take control over the States or order a state legislature to increase the home rule powers of the City of Chicago; it cannot enact federal legislation that adds to or revises Chicago's state created and limited delegated powers. The leading case, New York v. United States, held that the Commerce Clause does not authorize the Federal Government to conscript state governments as its agents. ``Where a federal interest is sufficiently strong to cause Congress to legislate, it must do so directly; it may not conscript state governments as its agents.'' The proposed Durbin-Lipinski legislation will do exactly what New York prohibits: it will conscript the City of Chicago as its agent and interfere with the relationship between the State of Illinois and the entity it created, the City of Chicago. New York invalidated a legislative provision that is strikingly similar to the proposed federal Durbin-Lipinski legislation. The Court, in the New York case, considered the Low-Level Radioactive Waste Policy Amendments Act of 1985. Congress was concerned with a shortage of disposal sites for low level radioactive waste. The transfer of waste from one State to another is obviously interstate commerce. Congress, in order to deal with the waste disposal problem, crafted a complex statute with three parts, only one of which was unconstitutional. There were a series of monetary incentives, which the Court unanimously upheld under Congress' broad spending powers. Congress also authorized States that adopted radioactive waste and storage disposal guidelines to bar waste imported from States that had not adopted certain storage and disposal programs. The Court, again unanimously, relied on long-settled precedent that approves of Congress creating such trade barriers in interstate commerce. Then the Court turned to the ``take title'' provisions and held (six to three) that they were unconstitutional. The ``take title'' provision in effect required a State to enact certain regulations and, if the State did not do so, it must (upon the request of the waste's generator or owner), take title to and possession of the waste and become liable for all damages suffered by the generator or owner as a result of the State's failure to promptly take possession. The Court explained that Congress could, if it wished, preempt entirely state regulation in this area and take over the radioactive waste problem. But Congress could not order the States to change their regulations in this area. Congress lacks the power, under the Constitution, to regulate the State's regulation of interstate commerce. This is what the proposed federal O'Hare Airport bill will do: it will regulate the State's regulation of interstate commerce by telling the State that it must act as if the City of Chicago has complied with the Illinois Aeronautics Act and other state rules. In a nutshell, Congress cannot constitutionally commandeer the legislative or executive branches. The Court pointed out that this commandeering is not only unconstitutional (because nothing in our Constitution authorizes it) but also bad policy, because federal commandeering serves to muddy responsibility, undermine political accountability, and increase federal power. The proposed Durbin-Lipinski legislation prohibits Illinois from applying its laws regulating one of its cities. The proposed federal law also authorizes the federal government to make an agreement with Chicago, pursuant to which Chicago will assume some significant obligations, even though present state law gives Chicago no authority to engage in this activity. As the six to three New York decision made clear: ``A State may not decline to administer the federal program. No matter which path the State chooses, it must follow the direction of Congress. . . . No other federal statute has been cited which offers a state government no option other than that of implementing legislation enacted by Congress. Whether one views the take title provision as lying outside Congress' enumerated powers, or as infringing upon the core of state sovereignty reserved by the Tenth Amendment, the provision is inconsistent with the federal structure of our Government established by the Constitution.'' The proposed Durbin-Lipinski legislation is very much like the law that six justices invalidated in New York. The O'Hare bill provides that, no matter what the State chooses, ``it must follow the direction of Congress.'' The State has ``no option other than that of implementing legislation enacted by Congress.'' The Court in New York went on to explain that there are legitimate ways that Congress can impose its will on the states: ``This is not to say that Congress lacks the ability to encourage a State to regulate in a particular way, or that Congress may not hold out incentives to the States as a method of influencing a State's policy choices. Our cases have identified a variety of methods, short of outright coercion, by which Congress may urge a State to adopt a legislative program consistent with federal interests. Two of these methods are of particular relevance here.'' The Court then discussed those two alternatives. First, there is the spending power, with Congress attaching conditions to the receipt of federal funds. The proposed Durbin-Lipinski legislation rejects the spending power alternative. Second, ``where Congress has the authority to regulate private activity under the Commerce Clause, we have recognized Congress' power to offer States the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation.'' The proposed Durbin-Lipinski legislation rejects that alternative as well. It does not propose that Congress directly takeover and expand O'Hare Airport. Instead, it proposes that the City of Chicago be allowed to exercise power that the State does not allow the City to exercise. New York v. United States did not question ``the authority of Congress to subject state governments to generally applicable laws.'' But Congress cannot discriminate against the States and place on them special burdens. It cannot commandeer or command state legislatures or executive branch officials to enforce federal law. Congress can regulate interstate commerce and States are not immune from such regulation just because they are States. For example, Congress can forbid employers from hiring child labor to work in coal mines, whether a private company or a State owns the coal mine and employs the workers. Printz v. United States. Following the New York decision, the Court invalidated another federal statute imposing certain administrative duties on local law enforcement officials, in Printz v. United States. The Brady Act, for a temporary period of time, required local law enforcement officials to use ``reasonable efforts'' to determine if certain gun sales were lawful under federal law. The federal law also ``empowered'' these local officers to grant waivers of the federally prescribed 5-day waiting period for handgun purchases. Note that the proposed Durbin-Lipinski legislation will also ``empower'' the City of Chicago to do that which Illinois does not authorize the city to do. To make the analogy even more compelling, the chief law enforcement personal suing in the Printz case said that state law prohibited them from undertaking these federal responsibilities. That, of course, is the exact position in which Chicago finds itself. State law prohibits Chicago from entering into and committing to these federal responsibilities (e.g., the agreements between Chicago and the FAA in Sec. 3(f) of the proposed Durbin-Lipinski legislation call for construction as a ``federal project'' but then require Chicago to either construct or allow construction without a permit from the State of Illinois). We should realize that the proposed Durbin-Lipinski legislation--in commanding and singling out the State of Illinois to, in effect, repeal its legislation governing the powers delegated to the City of Chicago--is quite unusual and not at all in the tradition of federal legislation. For most of our history, Congress would explicitly only ``recommend'' or ``request'' the assistance of the governors and state legislatures in implementing federal policy. It is only in very recent times that Congress has sought explicitly to commandeer or order the legislative and executive branches of the States to implement federal policies. Because such federal legislative activity is recent, the case law in this area is recent, but the case law is clear in prohibiting this type of federal assertion of power. New York v. United States held that Congress cannot ``command a State government to enact state regulation.'' Congress may regulate interstate commerce directly, but it may not ``regulate state governments' regulation of interstate commerce.'' The Federal Government may not ``conscript state governments as its agents.'' Congress has the ``power to regulate individuals, not States.'' In short, there are important limits on the power of the federal government to commandeer the state legislature or state executive branch officials for federal purposes. Another way to think about this issue is that, to a certain extent, the Constitution forbids Congress from imposing what recently have been called ``unfunded mandates'' on state officials. Congress cannot simply order the States or state officials or a city to take care of a problem. Congress can use its spending power to persuade the States by using the carrot instead of the stick. While there are those who have attacked the restrictions that New York v. United States have imposed on the Federal Government, it is worth remembering the line-up of the Court in Maryland v. Wirtz when the justices first considered this issue. That case rejected the applicability of the Tenth Amendment and held that it was constitutional for Congress to set the wages, hours, and working conditions of employees, including state employees in interstate commerce. However, Justice Douglas, who was joined by Justice Stewart, dissented. Douglas found the law to be a ``serious invasion of state sovereignty protected by the Tenth Amendment'' and ``not consistent with our constitutional federalism.'' He objected that Congress, using the broad commerce power, could ``virtually draw up each State's budget to avoid `disruptive effect[s]' '' on interstate commerce. New York v. United States prevents this result. The ``generally applicable'' restriction is important, and it explains Reno v. Condon. Congress enacted the Driver's Privacy Protection Act (DPPA), which limited the ability of the States to sell or disclose a driver's personal information to third parties without the driver's consent. Chief Justice Rehnquist, for a unanimous Court, upheld the law as a proper regulation of interstate commerce and not violating any principles of federalism found in New York v. United States or Printz because the law was ``generally applicable.'' Reno grew out of a congressional effort to protect the privacy of drivers' records. As a condition of obtaining a driver's license or registering a car, many States require drivers to provide personal information, such as name, address, social security number, medical information, and a photograph. Some States then sell this personal information to businesses and individuals, generating significant revenue. To limit such sales, Congress enacted the DPPA, which governs any state department of motor vehicles (DMV), or state officer, employee, or contractor thereof, and any resale or re-disclosure of drivers' personal information by private persons who obtained the information from a state DMV. The Court concluded: ``The DPPA's provisions do not apply solely to States.'' Private parties also could not buy the information for certain prohibited purposes nor could they resell the information to other parties for prohibited purposes, and the States could not sell the information to the private parties for certain purposes if the private parties could not buy it for those purposes. Unlike the law in New York, the Court concluded that the DPPA does not control or regulate the manner in which States regulate private parties, it does not require the States to regulate their own citizens, and it does not require the state legislatures to enact any laws or regulations. Unlike the law in Printz, the DPPA does not require state officials to assist in enforcing federal statutes regulating private individuals. This DMV information is an article of commerce and its sale or release into the interstate stream of business is sufficient to support federal regulation. The DPPA is a ``generally applicable'' federal law regulating commerce because it regulates the universe of entities that participate as suppliers to the market for motor vehicle information--the states as initial suppliers and the private resellers or redisclosers of this information. ``South Carolina has not asserted that it does not participate in the interstate market for personal information. Rather, South Carolina asks that the DPPA be invalidated in its entirety, even as applied to the States acting purely as commercial sellers.'' Conclusion The proposed federal law dealing with the O'Hare Airport expansion is most likely unconstitutional because it imposes federal rules on the relationship between a city and the State that created the city. It subjects Illinois to special burdens that are not generally applicable to private parties or even to other States. It authorizes the City of Chicago to do that which Illinois now prohibits. There is no escape from the conclusion that the proposed federal law does not regulate the behavior of private parties in interstate commerce. It does not subject the State of Illinois to ``generally applicable'' legislation. Instead, Congress is regulating the state's regulation of interstate commerce. Congress may not conscript the instrumentalities of state government and state power as tools of federal power. The case law is clear that Congress does not have this power. Sincerely, Ronald D. Rotunda, The Albert E. Jenner, Jr. Professor of Law.

Mr. JACKSON of Illinois. Mr. Speaker, on that I demand the yeas and nays.

Mr. JACKSON of Illinois. Mr. Speaker, I yield back the balance of our time.

Mr. JACKSON of Illinois. Mr. Speaker, I am honored to yield 3\1/4\ minutes to the distinguished gentlewoman from California (Ms. Waters), who has an issue at Los Angeles International Airport.

Mr. JACKSON of Illinois. No, sir. The gentleman from Illinois (Mr. Lipinski) made a unanimous consent request that 10 minutes be increased on each side and there was no objection, 10 minutes for that side and I am the other side.

Mr. JACKSON of Illinois. No, sir. No, sir, I did not yield 5 minutes to the gentleman from Illinois (Mr. Lipinski). The time of the gentleman from Illinois (Mr. Lipinski) is controlled by the chairman, sir. I am in opposition to the bill. They divided time amongst themselves. Ten minutes additional on each side, sir, should have left me with 22\1/2\ minutes. I yielded 10 minutes to the gentleman from Illinois (Mr. Hyde), and I yielded 2 minutes to the gentleman from Illinois (Mr. Crane), which should leave me with 10 minutes.

Mr. JACKSON of Illinois. Mr. Speaker, I feel compelled at this time to ask a parliamentary inquiry about my time. The reason I need to ask the parliamentary inquiry is that there have been three speakers for those of us who have been opposed to the legislation. The debate began with 20 minutes on each side, and then there was a unanimous consent for an additional 10 minutes, which should have left me with 30 minutes on my side and 30 minutes on the other side of this legislation. I have yielded 10 minutes to the gentleman from Illinois (Mr. Hyde), and you said he spoke for 9\1/2\ minutes and yielded back the balance of his time. I yielded 2 minutes to the gentleman from Illinois (Mr. Crane), and I made an opening statement. I do not know how long my opening statement was, but I do not believe it left me 6\1/2\ minutes.

Mr. JACKSON of Illinois. Correct. And at the time I yielded 10 minutes to the gentleman from Illinois (Mr. Hyde) I had 22\1/2\ minutes.

Mr. JACKSON of Illinois. I asked that he have 10 minutes.

Mr. JACKSON of Illinois. I am sorry, Mr. Speaker, my math is a little bit different. Since the moment that you yielded me and informed me I had 22\1/2\ minutes, I yielded 10 minutes to the gentleman from Illinois (Mr. Hyde) and 2 minutes to the gentleman from Illinois (Mr. Crane).

Mr. JACKSON of Illinois. Mr. Speaker, I yield 2 minutes to the gentleman from Illinois (Mr. Crane). (Mr. CRANE asked and was given permission to revise and extend his remarks.)

Mr. JACKSON of Illinois. Mr. Speaker, I yield 10 minutes to the gentleman from Illinois (Mr. Hyde), the distinguished chairman of the Committee on International Relations. (Mr. HYDE asked and was given permission to revise and extend his remarks.)

Mr. JACKSON of Illinois

Mr. JACKSON of Illinois. Mr. Speaker, I want to say that I have enjoyed the time that the gentleman from Illinois (Mr. Hyde) and I have worked closely to expand aviation capacity at Northeastern Illinois. I must add that from the very first moment I entered this institution, the gentleman from Illinois (Mr. Lipinski) has been a kind of mentor on all aviation issues, basically assuring me that they would be expanded where he wants them to be expanded. I consider him and rank him among one of my highest friends in the Congress of the United States. I thank the gentleman from Illinois for his kindness.

Mr. JACKSON of Illinois

Mr. JACKSON of Illinois. Mr. Speaker, how much time do I have remaining?

Mr. JACKSON of Illinois. Mr. Speaker, I am proud to yield 2\1/2\ minutes to the distinguished gentleman from Illinois (Mr. Crane). (Mr. CRANE asked and was given permission to revise and extend his remarks.)

Mr. JACKSON of Illinois. Mr. Speaker, on that I demand the yeas and nays.