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Thomas, J., dissenting
precisely the sort of fees § 1513(a) most clearly forbids. A head tax itself was held to be a "reasonable" user fee in Evansville (assuming, as the Court does, that Evansville applied a "reasonableness" standard). Under the Court's interpretation of the AHTA, there is nothing to prevent an airport from imposing a modest per passenger fee on airlines as a service charge for use of airport facilities.3 Such a fee would pass muster under Evansville, and therefore would be "saved" by § 1513(b) as a "reasonable" fee, even though it is clearly a charge "on the carriage of persons traveling in air commerce." § 1513(a).4 It is doubtful that Congress intended the AHTA to prohibit "unreasonable" landing fees, whatever they might be, while permitting "Evansville-reasonable" per capita user fees on aircraft operators. If, as the Court implies, Congress disapproved of the result but not the analysis in Evansville, it seems far more likely that it would have left the Commerce Clause analysis undisturbed while prohibiting head taxes and similar fees. In my view, that is precisely what § 1513 does.
Having applied a construction of "reasonable" that it admits is not compelled by the Act, the Court invites the Secretary of Transportation to devise a different, presumably bet-3 Presumably, under the Court's analysis, § 1513(b) would not save head taxes exacted directly from passengers because it refers only to user fees collected "from aircraft operators."
4 It is no answer to say, as the Court does, ante, at 368, n. 13, that "head charges" are prohibited by § 1513(a). In the Court's view, "user fees are [also] covered by § 1513(a)." Ante, at 366, n. 9. As the Court construes the Act, charges covered by § 1513(a) are permitted only if they are "saved" by § 1513(b). Ibid. It is not clear why § 1513(b) would save reasonable "fee[s]" and "other charge[s]" covered by § 1513(a) but not reasonable "head charge[s]" covered by § 1513(a). Head charges certainly may constitute "reasonable . . . service charges from aircraft operators for the use of airport facilities," § 1513(b), if Evansville is the standard of reasonableness. See Evansville-Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc., 405 U. S. 707, 710, 714 (1972) (upholding a $1 per passenger "service charge" collected from air carriers for "use of runways and other airport facilities").
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