The General Counsel of the U.S. Department of Transportation wrote to Congress yesterday to argue that a 65-year-old law does not prohibit Phil Washington, a military veteran, from filling the “civilian” role of Administrator of the Federal Aviation Administration.

General Counsel John Putnam’s letter to House Transportation and Infrastructure chairman Sam Graves (R-MO) and Senate Commerce, Science and Transportation chairman Ted Cruz (R-TX) makes two separate arguments related to Washington’s eligibility to serve as Administrator. Most of the letter argues that Washington meets the statutory requirement that the nominee have “experience in a field directly related to aviation.” This has seemed, to ETW, pretty clear cut all along, and Washington’s 20 years in mass transit work and nearly 2 years running a major airport seem to qualify.

Congress has agreed in the past, easily confirming Langhorne Bond (D-1977), Jane Garvey (D-1997), and Marion Blakey (R-2002) to the post, all of whom had roughly as much aviation-specific experience as Washington and a lot of broader transportation experience.

But the remainder of the letter rebuts the separate claim that Washington is not eligible to serve because the law requires the Administrator to be “a civilian” and Washington is a military retiree. (ETW wrote extensively on this question, here and again here.)

Putnam starts off the second part of the letter by quoting Justice Clarence Thomas as writing that Congress “says in a statute what it means and means in a statute what is says there.”

(Ed. Note: It is amusing to see a Democratic Administration quote Clarence Thomas’s summary of the lifetime work of his mentor, Antonin Scalia, on textualism versus legislative history, especially because Cruz was a Federalist Society member.)

However, there are different flavors of textualism, and they disagree when the meaning of a word has changed over time. Scalia was an “original textualist” which usually relies on the meaning of a word as it was commonly used when the law was written. Other textualists rely on the word as it is used now.

Putnam’s letter quotes the 2023 Merriam-Webster dictionary as defining “civilian” as “a person who is not on active duty with a military, naval, police, or fire fighting organization.” By this definition, Washington certainly qualifies, since he retired from 24 years of active Army service in July 2020 and has never returned to active duty.

(Because dictionaries are copyrighted, it is hard to find a vintage 1950s dictionary online, but we wonder precisely how the common use of the word may have changed since then, if at all.)

Putnam’s letter says that since 2000, “Washington has engaged in solely civilian pursuits and clearly fits the plain and widely understood meaning of the word ‘civilian.’ No further analysis is required to confirm Mr. Washington’s eligibility. If Congress had wanted to impose additional restrictions on individuals with prior service in the military, it could have done so. Indeed, in 49 U.S.C. § 106(d), Congress imposed limitations on who could serve as Deputy Administrator of the FAA, based upon the prior military service of the Administrator.”

However, the generation that wrote the 1958 FAA Act and interpreted it differently and for its first 35 years acted as if “civilian” meant “not subject to any Defense Department authority” – because persons on the retired list and receiving pensions, like Phil Washington, are, in theory, subject to being instantly recalled to active duty by the Secretary of Defense.

The explanatory statement of House managers to accompany the 1958 FAA Act said:

The requirement in section 301(b) that the Administrator be a civilian at the time of his nomination means that he shall be a civilian in the strictest sense of the word. Thus, at the time he is nominated he may not be on the active or retired list of any regular component of the armed services or on extended active duty in or with the armed services.

President Eisenhower, who signed the 1958 Act, complained about the civilian requirement forcing his nominee to give up his Army pension.  President Lyndon Johnson also complained to Congress that “The general’s retired status and the policy developed at the time of the establishment of the Agency that the Administrator should be a civilian would impose upon him the burden or requiring him to make an unreasonable financial sacrifice and subject his family to the risk that they would be denied, in the event of his death, the benefits of his present retired status which they rely upon for their security..”

On five occasions from 1965-1992, Congress went through the trouble of passing special laws allowing individual military retirees to serve as FAA Administrator without forfeiting their pensions. The Putnam letter argues that all this work by Congress, including by some of the legislators who wrote the 1958 Act, was an unnecessary waste of time:

To be sure, Congress has, on occasion, passed laws and granted waivers to certain retired officers to allow them to serve as FAA Administrator. Pursuant to the plain text of 49 U.S.C. § 106(c), those waivers were not necessary to make the nominees eligible to serve as FAA Administrator. Mr. Washington is fully qualified to serve as FAA Administrator pursuant to 49 U.S.C. § 106(c), and no waiver of this statutory provision is required. 

Will all 51 Democratic Senators support Putnam’s legal reasoning (if they are even aware of the issue when they vote)? Who knows, but this appears to be the White House’s strategy. (An unanswered question is whether or not Cruz has any procedural remedy. If he raises a point of order on the Senate floor against the nominations on statutory grounds, is that the kind of thing that the Parliamentarian will even entertain? We can’t find any precedents one way or the other.)