The FAA and the Federal Preemption Doctrine

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

The United States Supreme Court has interpreted this language as follows:

 “Article VI, cl. 2, of the Constitution provides that the laws of the United States “shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Consistent with that command, we have long recognized that state laws that conflict with federal law are “without effect.” Altria Group v. Good, 555 U.S. 70, 75 (2008), citing Maryland v. Louisiana, 451 U. S. 725, 746 (1981).

            The FAA is empowered by Federal Statute to determine whether  small unmanned aircraft systems may operate safely in the national airspace system (NAS) and to establish requirements for the safe operation of such aircraft systems in the NAS.  See United States Code, Title 49, 49 U.S.C. §§40101- 50105 and the FAA Modernization and Reform Act of 2012 (Public Law 112-95).  Theoretically, this could mean that FAA regulations preempt all aspects of state law affecting the operation of aircraft, small UAS or otherwise, in the NAS.

However, the FAA on its website provides as follows: 

States, Cities and UAS
A number of states and municipalities have passed or are considering limitations on unmanned aircraft. The effect of such restrictions depends on the precise nature of the limitation.
By law, the FAA is charged with ensuring the safe and efficient use of U.S. airspace. This authority generally preempts any state or local government from enacting a statute or regulation concerning matters – such as airspace regulation—that are reserved exclusively to the U.S. Government. 
For example, a state law or regulation that prohibits or limits the operation of an aircraft, sets standards for airworthiness, or establishes pilot requirements generally would be preempted.  But state and local governments do retain authority to limit the aeronautical activities of their own departments and institutions.  Under most circumstances, it would be within state or local government power to restrict the use of certain aircraft, including a UAS, by the state or local police or by a state department or university.

Numerous legal commentators have noted that on its face, the concept of Federal preemption does not seem especially complicated: when federal law and state law clash, federal law prevails. This is the direct result of Article VI, section 2 of the Constitution, which makes the Constitution and federal laws “the supreme law of the land.”  However, the doctrine of federal preemption has been anything but simple and straightforward in recent Supreme Court cases.

            In addition, the issue of federal preemption has become politically charged as well.  So, as more incidents of UAS operation invoking the application of state law come into play (like the Kentucky man who allegedly shot down a drone  peeping at his daughter here.   I expect that the issue of Federal preemption of state law will become of critical importance in the legal and political landscape as the Age of the Drones unfolds.

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