In a letter to AOPA, the Transportation Security Administration (TSA) says in no uncertain terms that individual states have no authority to require pilot background security checks; that power lies solely with the federal government.
"This letter is powerful ammunition in our fight to strike down Michigan's pilot background check law," said AOPA President Phil Boyer. "And it ought to make other state and local lawmakers stop and think twice about their own inappropriate efforts to regulate aviation security and pilot licensing."
The April 10 letter was a response to an AOPA request for TSA's opinion on state-imposed aviation security regulations. Assistant Administrator for Transportation Security Policy Thomas Blank wrote, "State imposed measures to require criminal background checks on flight school applicants would create a patchwork of requirements in this area.... It is TSA's view that while such efforts by states are motivated by legitimate concerns for the security of the nation, they are nevertheless not permissible."
Blank states that both existing federal law that pre-dates the September 11, 2001, terrorist attacks and the Aviation and Transportation Security Act (ATSA), which created TSA, preempts any attempts by states to regulate aviation. "[F]ederal legislation evinces a clear intent to occupy the field of pilot regulation in the furtherance of national security, to the exclusion of state law," says the letter. "It is the position of TSA that federal law impliedly preempts state-imposed aviation security requirements such as [the Michigan pilot background check law] and that similar legislation being contemplated by other state legislatures would likewise be preempted."
The FAA has also backed AOPA's position. In two separate letters supporting AOPA's federal lawsuit challenging the Michigan law, FAA Deputy Chief Counsel James Whitlow said federal law preempts state efforts. "[C]ourts throughout the country have recognized a Congressional intent to preclude supplementation by the States," wrote Whitlow. "Especially pertinent is the fact that the U.S. Court of Appeals for the First Circuit has found state lawmaking in the area of pilot qualification to be preempted."
In the TSA letter, Blank said that when Congress created ATSA, it created a fundamental shift in how aviation security is handled. That responsibility now falls squarely on shoulders of the federal government, with airports, air carriers, and state and local governments limited to carrying out federal directives.
"The combination of preexisting law, ATSA, and the legislative history accompanying its enactment reveals a Congressional intent to establish complete and thorough federal responsibility over aviation security not subject to supplementation by the states," wrote Blank.
"State imposed measures to require criminal background checks on flight school applicants would create a patchwork of requirements in this area and would appear to be inconsistent with the intent of Congress. Accordingly, it is the TSA's view that while such efforts by states are motivated by legitimate concerns for the security of the nation, they are nevertheless not permissible."
With nearly 400,000 members, AOPA is the world's largest civil aviation organization. The association is dedicated to preserving the rights and privileges of all general aviation pilots. General aviation is defined as all aviation except scheduled air carrier service and military flights. GA accounts for the vast majority of hours flown each year in the United States.