The Federal Aviation Administration is a federal agency with the authority to regulate all civil aviation in the United States, including flights over state rather than federal territory. How is the federal government able to regulate aviation over state territory? The Constitution says nothing about aviation. (Obviously the original Constitution is going to be silent on the issue, but there haven't been any amendments regarding aviation.)

The interstate commerce clause of the Constitution probably does give the federal government the ability to regulate commercial, and maybe even private, flights between multiple states. But how is the FAA able to regulate small manned flights that never travel out of state, or drone/unmanned aerial vehicle flights that almost always stay within the borders of a single state (the latter seeing a lot of new rules lately)?

And also, how can Congress require TSA checkpoints to be located at major airports? (Or is the TSA knowingly unconstitutional, created as an emergency response to 9/11 on the grounds that 'the Constitution is not a suicide pact'?)

4 Answers 4


You need to read the book

Who Owns the Sky? The Struggle to Control Airspace from the Wright Brothers On Stuart Banner.

The primary issue was not conflict between states and the Federal government but between private landowners and the Federal government. Under the common law of the time, a person who owns the soil also owns the space indefinitely upward, "ad coelum or to the heavens". There had previously been successful lawsuits for trespass and/or nuisance for, among other things, bullets that passed over land without touching it.

Aviation in the early 20th century was largely unregulated in the United States, partially due to the issue of Federalism but primarily due to the question of if private citizens would be able to claim compensation for the government seizing their airspace. Neither state nor Federal governments wanted anything to do with it. The question was resolved in Europe before the First World War because national governments there were (largely) not federal, did not have the same sanctity of private property rights as the US and could see enormous national security issues in foreigners flying over your military installations, gathering intelligence about them and - as events ultimately showed - dropping bombs on them.

When the US finally decided that aviation needed regulation it passed the Air Commerce Act of 1926. There was never any issue about its constitutionality as the Federal government can rely on the Necessary and Proper Clause of Article 1, Section 8 which the Supreme Court has interpreted permissively since McCulloch v Maryland 17 U.S. (4 Wheat.) 316 (1819):

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.

Basically, the Constitution is permissive in the powers it gives Congress - they have the power unless it says they don't.

The validity of the law with respect of the private property issue was settled in United States v. Causby, 328 U.S. 256 (1946) which overturned the common law that landholders owned airspace "to the heavens" but rejected that the government could seize it all down to ground level without compensation - in that particular case the government had to pay compensation for flights between 83 feet (the lowest that was made) and 365 feet (where the owner's property was deemed not affected by the flights).

The current state of the law is that you own as much airspace as is necessary for your current usage - this is higher in an office building in Manhatten than it is over a cornfield in Idaho.

  • 2
    The "Necessary and Proper" clause gives Congress the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof". So which of "the foregoing powers" or "other powers" do you assert is being carried into execution here? May 13, 2019 at 14:02
  • @NateEldredge Those that are in the “spirit” of the Constitution as the Supreme Court said - specifically that regulation of aviation is in the welfare of the citizens
    – Dale M
    May 13, 2019 at 21:00
  • If you buy a cornfield in Idaho and decide to build a tall office building, do you then own more airspace? (assume all necessary permits are obtained, zoning laws are followed, etc.)
    – Someone
    Mar 24, 2023 at 17:45

First, the FAA and its antecedent the Civil Aeronautics Authority is grounded in the Commerce Clause, where the duty of the CAA is:

§2 The encouragement and development of an air-transportation system properly adapted to the present and future needs of the foreign and domestic commerce of the United States, of the Postal Service,and of the national defense

The regulation of air transportation in such manner as to recognize and preserve the inherent advantages of, assure the highest degree of safety in, and foster sound economic conditions in, such transportation, and to improve the relations between, and coordinate transportation by, air carriers...

etc. Second, the Commerce Clause has been interpreted to allow regulation of matters affecting interstate commerce, such as a farmer's growing wheat for his own livestock (Wickard v. Filburn). A drone does not have to cross state lines to be able to affect interstate commerce.

  • This like 90% of answers on here just lists a law about aviation when an aviation question is asked rather than answering the question.
    – Putvi
    May 13, 2019 at 12:55
  • 4
    @Putvi this is Law, so of course the answer analyzes a law about aviation in response to a question about aviation. This answer clearly answers the question by quoting a statute and asserting that the statute derives its authority from the interstate commerce clause of the constitution. Furthermore, crucially, the answer explains why the interstate commerce clause is applicable to activities that do not themselves cross state boundaries.
    – phoog
    May 13, 2019 at 13:47

The Constitution says nothing about aviation....

It doesn't have to, because the Constitution gives Congress the power to create laws and fund programs, and one of those laws covers the creation and administration of the FAA: 49 U.S. Code § 106 - Federal Aviation Administration | U.S. Code | Legal Information Institute.

Don't fall for the very common fallacy that everything must be stipulated in the Constitution or it is "unconstitutional"; the drafters of the Constitution saw fit to allow Congress to make - and rescind - laws as needed.

The authority of the FAA has been upheld many times in court, as well as the TSA to perform searches at airports and regulate security.

As for Federal law premepting state law, Article VI, Clause 2 of the US Constitution, known as the Supremacy Clause, says

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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

If Congress has the authority to pass a law on a subject, then that is the law of the land. See What U.S. Constitutional or statutory authority gives Congress the right to pre-empt state law?

And see What part of the constitution makes the US federal agency "Food and Drug Administration" legal?

  • The question is clearly "what authority in the constitution allows the creation of the FAA?" So the answer "if Congress has the authority to pass a law on a subject, then that is the law of the land" is not helpful.
    – phoog
    May 13, 2019 at 12:23
  • Wow, I actually agree with @phoog, but still notice he didn't downvote the others. The cult mentality continues on here.
    – Putvi
    May 13, 2019 at 12:56
  • @Putvi user6726 answered the question, contrary to your comment, and I haven't had time to read Dale M's answer thoroughly enough to decide how to vote on it.
    – phoog
    May 13, 2019 at 13:44
  • Really, this answer has more constitutional grounds than User's.
    – Putvi
    May 13, 2019 at 13:47
  • @Putvi the question is "how is this constitutional," and the other answer makes an assertion about that. This answer simply begs the question.
    – phoog
    May 13, 2019 at 13:49

Aviation Law has a significant overlap in Admiralty Law, which in the United States. Under Article 3, section 2, of the U.S. Constitution, The Supreme Court has original jurisdiction over Admiralty Laws, thus making these laws a federal matter, rather than a state matter. While the Constitution has no mention of Aviation Law specifically, the Admiralty overlaps, coupled with Early United States Aviation being used for Postal deliveries and military operations, industries controlled by the Federal Government from the get go, the breadth of Aviation Regulations were related to the Federal Government duties as afforded to it. That said, not all matters of aviation law are federally regulated. Both State and Local governments can indirectly affect flight patterns by zoning laws and noise ordinance laws that limit the approachs airplanes can take when taking off or landing at a particular airport.

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