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We, the people

The FAA and our constitution

By Ryan King

The main body of the U.S. Constitution creates three branches of government: the legislative, the executive, and the judicial. Where does the Federal Aviation Administration (FAA) fit in?

The answer is in the bureaucracy. However, it is more complicated than that. The bureaucracy is not a standalone fourth branch of government, even though many feel it is. Each administrative agency must fall under the legislative, executive, or judicial branches. Each administrative agency must answer to Congress (either house or both), the president, or the U.S. Supreme Court. The Constitution only allows for those three bodies.

There is no mention of the FAA or any other administrative agency in the U.S. Constitution or its 27 amendments. The FAA is a creation of Congress through statute, within the Federal Aviation Act of 1958. The FAA is a federal agency that falls under the Department of Transportation. Prior to the FAA there was the Civil Aeronautics Authority, created in 1938, that regulated the aviation industry until the FAA’s creation in 1958. The Federal Aviation Act is renewed every so often and is up for reauthorization in 2023.

The FAA was created “to provide for the regulation and promotion of civil aviation in such manner as to best foster its development and safety, and to provide for the safe and efficient use of the airspace by both civil and military aircraft, and for other purposes.” This is the FAA’s “intelligible principle.” An intelligible principle is the legal framework Congress creates to limit an administrative agency. The requirement of an intelligible principal stems from the non-delegation doctrine, which holds that one branch (usually Congress) cannot delegate its power/authority (usually legislative) to another branch (usually the executive, i.e., the president). Congress must limit the administrative agency’s role to a specific purpose. This is what prevents the FAA from promulgating regulations governing nonaviation issues.

Although Congress created the FAA, the agency is controlled by the executive branch and answers to the president. Therefore, the president nominates the FAA administrator, and the nominee must be approved by two-thirds of the Senate. The FAA puts regulations that are within the framework that Congress has laid out and to effectuate the policy of the president. This is usually through a process called notice and comment rulemaking.

In 2010 the FAA was considering whether to change Long Beach Airport/Daugherty Field’s Class D airspace to Class C airspace. The FAA gave notice of this proposed change or “rule,” including a diagram of what the proposed Class C airspace would look like. Then the agency provided the aviation community and the public a 30-day period to comment on the proposed change. The FAA declined to change the airspace of Long Beach Airport from Class D to Class C, in part because of the input by the aviation community.

Congress may direct the FAA to act. After members of the aviation community, including AOPA, advocated for an alternative to FAA medical certification, Congress passed section 2307 of the FAA Extension, Safety, and Security Act on July 15, 2016. In doing so, Congress required the FAA to adopt BasicMed.

The FAA plays a vital role in our federal system of government, but it is not an authority unto itself. It is a creation to serve the purpose of promoting aviation safety. Ultimately, the FAA must answer to Congress and the president, who in turn must listen to you, the people.

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