RESTORING AMERICAN AIRSPACE SOVEREIGNTY - EXECUTIVE ORDER ISSUED JUNE 6, 2025 - HIGHLIGHTS, PART ONE

The Restoring American Airspace Sovereignty Executive Order was issued by President Trump on June 6, 2025. See here. The purpose of the Executive Order (EO) was to address the perceived threat offered by Uncrewed Aircraft Systems (“UAS” or “drones”) to potentially endanger public safety through unauthorized drone flights and to ensure American sovereignty over its skies. The purpose of the EO was also to ensure that America’s airspace remains safe and secure.

The following is Part One of a summary of provisions of greatest interest with respect to drone law in the EO.

1.      1. Ensure American sovereignty:

Section 1 of the EO, entitled “Purpose” provides that:

Unmanned aircraft systems (UAS), otherwise known as drones, offer the potential to enhance public safety as well as cement America’s leadership in global innovation.  But criminals, terrorists, and hostile foreign actors have intensified their weaponization of these technologies, creating new and serious threats to our homeland.  Drug cartels use UAS to smuggle fentanyl across our borders, deliver contraband into prisons, surveil law enforcement, and otherwise endanger the public.  Mass gatherings are vulnerable to disruptions and threats by unauthorized UAS flights.  Critical infrastructure, including military bases, is subject to frequent — and often unidentified — UAS incursions.  Immediate action is needed to ensure American sovereignty over its skies and that its airspace remains safe and secure.

With respect to the use of the term “sovereignty” as emphasized in the EO, normally this term is used in the context of supreme authority. According to  the Oxford English Dictionary, “sovereignty is the supreme authority within a state, encompassing the power to govern and the ability to impose laws on everyone else within its territory. It essentially means a state's right to exercise supreme authority within its borders.”

Federal law specifically confers on the FAA the legal authority to control the National Airspace System (NAS). The FAA’s general statutory authority is found in the United States Code, Title 49, 49 U.S.C. §§40101- 50105. Specifically, the United States Government has exclusive sovereignty over airspace of the United States pursuant to 49 U.S.C.A. § 40103. The airspace, therefore, is not subject to private ownership nor can the flight of an aircraft within the navigable airspace of the United States constitute a trespass.

Unmanned aircraft are aircraft consistent with Subtitle B of Public Law 112-95 and the existing definition of aircraft in Title 49 of the United States Code, 49 U.S.C. 40102.

The United States Congress has vested the Federal Aviation Administration (FAA) with authority to regulate the areas of airspace use, management and efficiency, air traffic control, safety, navigational facilities, and aircraft noise at its source. 49 U.S.C. §§ 40103, 44502, and 44701-44735. Congress has directed the FAA to “develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace.” 49 U.S.C. § 40103(b)(1). Congress has further directed the FAA to “prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitudes)” for navigating, protecting, and identifying aircraft; protecting individuals and property on the ground; using the navigable airspace efficiently; and preventing collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects." 49 U.S.C.§ 40103(b)(2).

Pursuant to the foregoing, the FAA has the legal authority to control the NAS, and the FAA has not ceded this legal control. So, while the spirit of the EO is well taken, there technically is no need to “restore” the FAA’s “supreme authority” over the NAS at this point in time.