Commercial Aviation Regulatory Policies and Priorities in the Trump Administration

The incoming Trump Administration has strongly signaled its intent to narrow the role and scope of government regulation. Although aviation will always be subject to stringent and pervasive safety regulation, this post examines the areas in which the Trump Administration may depart from the Biden Administration's other aviation priorities. The observations below are based on both a review of the record of the first Trump Administration and statements made by the president-elect and/or his transition team.

Withdrawal or Repeal of Existing Regulations

At the beginning of the first Trump Administration, federal regulatory agencies were directed by Executive Order to withdraw or repeal two existing policies or regulations before issuing any new policies or regulations.¹ Expect the new administration to adopt a similar approach, which means that the new administration may either freeze the processing of or formally withdraw U.S. Department of Transportation (DOT) Notices of Proposed Rulemaking (NPRM) that currently are in the pipeline, such as the proposed new Family Seating Rule,² and take a measured or even hostile approach toward the issuance of new rulemaking initiatives.³

Constrained Regulatory Enforcement

In the area of consumer regulatory enforcement, the DOT in the first Trump Administration adopted a policy that if an activity or behavior was not directly banned by a statute or regulation, then the DOT would not seek to take enforcement action against such activity or behavior.⁴ This was significant because the DOT historically had issued enforcement policy and compliance directives through informal statements and regulatory decision-making. In stating a narrowly tailored approach toward enforcement action, the DOT's then-general counsel issued a detailed guidance memorandum to the operating administrations within the DOT that cautioned against "overly broad or unduly expansive interpretations of the governing statues or regulations," expressly stating that the DOT would not be relying on "judge-made rules of judicial discretion, such as the Chevron doctrine."⁵

Given the U.S. Supreme Court's recent rejection of the Chevron doctrine in the Loper Bright decision and the highly conservative approach toward regulatory enforcement taken by the DOT under the first Trump Administration,⁶ expect DOT enforcement activity to both decline and be more narrowly constrained than it has been under the Biden Administration, which has emphasized both the size and volume of fines levied against commercial airlines as evidence of its pro-consumer bent.

Changes in Antitrust Policy

Although airline merger and alliance transactions are extremely fact-specific, the new administration will likely take a more permissive approach to cooperation between airline competitors than seen in the Biden Administration. The Trump campaign and first Trump Administration embraced a laissez-faire approach to mergers and joint ventures. By contrast, the Biden Administration has sharply criticized consolidation in the airline industry and in other sectors of the American economy and challenged several airline mergers and commercial alliances.⁷ It also is open to question what action, if any, the new administration will take in response to information gathered and received by the Biden Administration in connection with the Joint DOT-U.S. Department of Justice Request for Information about competition in the airline industry that was issued in October 2024.⁸

Holland & Knight's Aviation Team monitors legal developments in the commercial aviation industry on an ongoing basis and will be reporting on new and emerging shifts in regulatory and legal policies.

Notes:

¹ See Executive Order 13371, "Reducing Regulation and Controlling Regulatory Costs," issued Jan. 30, 2017, printed in 82 Fed. Reg. 9339 (Feb. 3, 2017).

² See DOT, "Family Seating in Air Transportation," NPRM, 98 Fed. Reg. 65272 (Aug. 9, 2024).

³ A note of caution to inject is that in a recent Senate Commerce Committee Hearing on Airline Consumer Practices, Sen. Josh Hawley (R-Mo.) made remarks critical of airline consumer practices, a development that might suggest a shift in tenor in Republican circles. See, e.g., Anne Marie Lee, "Airline Executives Blasted at Senate Hearing Over Carrier Fees, " Dec. 5, 2024.

⁴ Memorandum from Steven G. Bradbury, DOT General Counsel, to secretarial offices and heads of operating administrations, Feb. 15, 2019.

⁵ Id. at 6.

⁶ In 2016, the last year of the Obama Administration, the DOT issued 28 Consent Orders, imposing civil penalties in the amount of $6.36 million. By comparison, the Trump Administration in 2020 issued six Consent Orders in the total amount of $1.62 million. See DOT Docket OST-2016-0001 and DOT Docket OST-2020-0001 for a comparison between the two years.

⁷ Executive Order 14036, July 9, 2021.

⁸ See DOJ press release, "Justice Department and Department of Transportation Launch Broad Public Inquiry into the State of Competition in Air Travel," Oct. 24, 2024. Comments on that query are due by Jan. 5, 2025.