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July 20, 1989


Joyce Hens Green, United States District Judge.

The opinion of the court was delivered by: GREEN


 The Supreme Court's recent separation of powers jurisprudence has been populated by an array of novel situations. Within the last few years, the Court has upheld the constitutionality of a Sentencing Commission within the Judicial Branch composed of judges and others appointed by the President and charged with the duty of formulating guidelines for sentencing of federal offenders, Mistretta v. United States, 488 U.S. 361, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989); has rejected a challenge to an independent counsel located within the Judicial Branch to investigate and prosecute crimes committed by Executive Branch officials, Morrison v. Olson, 487 U.S. 654, 108 S. Ct. 2597, 101 L. Ed. 2d 569 (1988); and has approved a law allowing a federal agency to adjudicate state law counterclaims arising in connection with administrative proceedings, Commodity Futures Trading Commission v. Schor, 478 U.S. 833, 92 L. Ed. 2d 675, 106 S. Ct. 3245 (1986).

 This case features yet another unusual institution. In transferring two federally-owned airports to an interstate authority, Congress required that the lease describing the transfer provide for a review board composed of nine members of Congress with veto power over the state authority. The compacting states agreed to this condition and created the review board. The Court is now called upon to determine whether the federal statute authorizing the transfer of the airports violates the Constitution. For the reasons articulated below, the Court concludes that it does not.

 I. Background

 Three major commercial airports serve the Washington, D.C. area. The oldest is Washington National Airport (National), which was opened in 1941 just across the Potomac River from the District of Columbia in Virginia. Baltimore-Washington International Airport (BWI), formerly known as Baltimore Friendship Airport, is situated halfway between the District of Columbia and Baltimore, Maryland in the Maryland suburbs. Washington Dulles International Airport (Dulles), located in the suburbs of Virginia, began operations in 1962. Although every other commercial airport in the United States is operated by a regional, state or local authority, National and Dulles were placed under the ownership and control of the federal government. *fn1" The Federal Aviation Administration (FAA), a component of the Department of Transportation, undertook this responsibility.

 Ever since the two airports opened, plans to extricate National and Dulles from federal control have surfaced. None succeeded. In June 1984, however, the combination of rising federal budget deficits and the need for immediate and significant improvements of the facilities at National and Dulles led Secretary of Transportation Elizabeth Dole to form an advisory commission composed of public leaders and aviation officials to explore the transfer issue. On December 18, 1984, the Holton Commission, named after its Chairman, former Virginia Governor A. Linwood Holton, Jr., issued a report whose main recommendations were (1) that National and Dulles be transferred to a single independent public authority with the ability to issue tax-exempt bonds to raise revenue for capital improvements; (2) that the transfer should be effected by means of a long term lease; and (3) that the new entity should be administered by a governing board made up of non-political members appointed by local officials. See Plaintiffs' Exhibit (Pl. Ex.) 2.

 The momentum generated by the Holton Commission's report spurred legislative activity on two fronts. On April 3, 1985 the Governor of Virginia approved a law authorizing creation of a regional airports authority along the lines suggested by the Holton Commission to acquire National and Dulles from the federal government. 1985 Va. Acts ch. 598. Almost-identical legislation was passed by the City Council of the District of Columbia; it was signed by the Mayor on October 9, 1985 and became effective on December 3, 1985. D.C. Law 6-67 (1985). In the meantime, the Congress was also taking action. A bill was introduced in the Senate on April 26, 1985 conveying the Reagan Administration's proposal for transferring National and Dulles. See 131 Cong. Rec. 9607 et seq. Hearings were held before the Senate Committee on Commerce, Science and Transportation in June and July of 1985, and the version of the bill that was approved by the committee embodied the recommendations of the Holton Commission "in all significant respects." S. Rep. No. 193, 99th Cong., 1st Sess. 2 (1985). The measure was debated in, amended by and passed the full Senate on April 11, 1986. 132 Cong. Rec. 7276.

 The focus then shifted to the House, where the Committee on Public Works and Transportation held its own hearings in June 1986. Shortly thereafter, however, the Department of Transportation sought guidance from the Justice Department concerning several proposals to create a board, whose members would be drawn from the House and Senate, with veto power over certain decisions of the airports authority. The Assistant Attorney General for Legislative and Governmental Affairs, John R. Bolton, issued a letter opinion discussing the alternatives and concluding that one of the three was constitutional. Pl. Ex. 3. A new bill, now containing a provision for a Congressional review board, passed the Senate on October 3, 1986 and the House on October 15, 1986 as part of an appropriations rider. See 132 Cong. Rec. S14,862-64 & H11098-106 (daily ed.). After being signed by the President, the Metropolitan Washington Airports Act of 1986 (the Airports Act or the Act) became law. *fn2"

 II. The Airports Act

 Concluding that National and Dulles "constitute an important and growing part of the commerce, transportation, and economic patterns of the Commonwealth of Virginia, the District of Columbia, and the surrounding region" and that the federal government had a "continuing but limited interest" in the two airports, § 2451(1) & (3), Congress passed the Airports Act to

authorize the transfer of operating responsibility under long-term lease of the two [airports] as a unit . . . to a properly constituted independent airport authority created by the Commonwealth of Virginia and the District of Columbia, in order to achieve local control, management, operation, and development of these important transportation assets.

 § 2452(a). To that end, the Act authorizes the Secretary of Transportation to enter into a 50-year lease for the transfer of the airports to the aforementioned Airports Authority and states that the lease "shall provide" for the payment of $ 3 million per year from the Authority to the United States Treasury. § 2454(a) & (b). *fn3" In addition, the Act provides that the Airports Authority "shall agree, at a minimum" to certain "terms and requirements" contained in the lease. § 2454(c). Among other things, the Authority is required to operate National and Dulles "as a unit," to use the property only for airport purposes, to adhere (with certain exceptions) to all applicable FAA regulations, and to assume all rights, liabilities and obligations of National and Dulles. Id.

 Section 2456 of the Act is entitled "Airports Authority," and its provisions lie at the heart of the instant case. The section begins:

The Airports Authority shall be a public body corporate and politic, having the powers and jurisdiction as are conferred upon it jointly by the legislative authority of the Commonwealth of Virginia and the District of Columbia . . . but at a minimum meeting the requirements of this section.

 § 2456(a). *fn4" It provides that the Airports Authority shall be (1) "independent" of Virginia, the District of Columbia and the federal government and (2) "a political subdivision constituted solely to operate and improve both [National and Dulles] as primary airports serving the Metropolitan Washington area." § 2456(b). In section 2456(c), the Authority is granted general authority to operate and is empowered to "acquire, maintain, improve, operate, protect, and promote" the two airports; to issue bonds; to acquire real and personal property; to levy fees or other charges; and to make agreements with employee organizations. Whenever the Authority takes an action "changing, or having the effect of changing, the hours of operation of or types of aircraft serving either of the [airports]," it must do so by regulation. § 2456(g).

 The Authority is administered by an 11-member Board of Directors. § 2456(e)(1). Five are appointed by the Governor of Virginia, three by the Mayor of the District of Columbia, two by the Governor of Maryland, and one by the President with the advice and consent of the Senate. Id. Members (who serve staggered, six-year terms) are prohibited from holding elective or appointed office, may not receive compensation for their service, and must (with the exception of the member appointed by the President) reside within the Washington Standard Metropolitan Statistical Area. § 2456(e)(2) & (3). The Chairman is chosen by majority vote of all members. § 2456(e)(1).

 The Act also provides that the Board of Directors "shall be subject to review of its actions and to requests" by a Board of Review, which "shall be established by the Board of Directors." § 2456(f)(1). The Board of Review consists of (1) two members from both the House Committee on Public Works and Transportation and the Committee on Appropriations, chosen from a list provided by the Speaker of the House; (2) two members from both the Senate Committee on Commerce, Science and Transportation and the Committee on Appropriations, from a list provided by the President pro tempore of the Senate; and (3) one member from the House of Representatives and Senate as a whole, from lists provided by the Speaker and the President pro tem. Id. Members from the Congressional committee serve staggered, six-year terms, while the "at large" member (whose seat alternates between the House and the Senate) serves a two-year term. § 2456(f)(2). No Senator or Representative from ...

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