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ORCID (Links to author’s additional scholarship at ORCID.org)

https://orcid.org/0000-0003-1765-3510

Abstract

The strangest airline route in America is between Pago Pago and the Manu’a Islands in American Samoa. No U.S. carrier serves this “domestic” route. Therefore, it is the only route between two points in the United States (or, more accurately, its territories) that is regularly scheduled service by a non-U.S.-flagged airline. The Pago Pago–Manu’a Islands flight is thus an unprecedented and unique exception to a federal law that permits only U.S. carriers operating U.S.-registered aircraft to fly between U.S. states and territories. Under existing U.S. cabotage policies, moreover, states and U.S. territories are divested of all power to manage interstate air transportation to and from other U.S. airports as a matter of law. As a result, governments like that of American Samoa have no authority to allow non-U.S. carriers to fly in and out of American Samoa to key connection points to the United States, such as Honolulu or Los Angeles. Standing alone, and putting aside antitrust and competition concerns, the absence of foreign (i.e., non-U.S.) carriers in any particular “domestic” aviation market is unproblematic and even expected where purely “domestic” travel is involved. But, in American Samoa, the absence of foreign carriers means that competition and consumer choice are nonexistent.

Presently, for example, just one U.S.-flagged carrier—Hawaiian Airlines—connects American Samoa with any other part of the United States. In this monopolistic framework, few if any incentives exist for Hawaiian Airlines to provide more than the minimum acceptable level of service. And, in fact, in 2020, the Governor of American Samoa signed an Executive Order seemingly evicting Hawaiian Airlines from the territory while calling for a permanent waiver of federal cabotage law—an action that the U.S. Department of Transportation (DOT) rejected as an action not countenanced under the Airline Deregulation Act of 1978.

This Article argues for a change or exemption in the current law. In so doing, this Article features national aviation law as an unexpectedly useful area in which to gain insight into the broader flaws of imperial rule. With respect to American Samoa specifically, federal cabotage rules and laws deregulating the commercial airline industry displace territorial efforts to achieve autonomy and self-governance over matters of local concern and constitutional dimension, including jurisdiction (i.e., navigation), commerce and trade, and travel. Worse, national laws strip territorial leaders of the ability to better the welfare of their community without also meaningfully advancing U.S. objectives. Therefore, this Article argues that Congress should exempt American Samoa permanently from application of cabotage and deregulation laws and policies, a seemingly local issue that genuinely portends wholesale changes to longstanding international aviation law.

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Digital Object Identifier (DOI)

https://doi.org/10.25172/jalc.87.3.8