The simple 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 branch. In other words, given our constitutional structure, each administrative agency must answer to Congress (either house or both), the President, or the Supreme Court. This is because the Constitution only allows for those three bodies.
You may be asking why that is. As it may be obvious, there is no mention of the FAA or any other administrative agency in the Constitution or its twenty-seven amendments. Rather the FAA is a creation of Congress through statute. Specifically, the FAA was first created in 1958 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 that was created in 1938 and regulated the aviation industry until the FAA’s creation in 1958. (Approximately a year later (May 15, 1939), the AOPA articles of incorporation were approved at Trenton N.J.) 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.” UNITED STATES STATUTES AT LARGE, PL 85-726, August 23, 1958, 72 Stat. 731.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 principle 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 non-aviation issues such as internal revenue collections. (i.e., the IRS’ role through delegation).
Although Congress created the FAA, it is controlled by the executive and answers to the President. Therefore, the President nominates the FAA Administrator, and the nominee must be approved by the senate as do many other nominations. The FAA proceeds to promulgate 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.
An example of notice and comment rulemaking in aviation is when the FAA is pondering whether to change the airspace of an airport. For example, the FAA was considering whether to change Long Beach Airport/Daugherty Field’s Class D airspace to Class C airspace in 2010. See https://www.aopa.org/news-and-media/all-news/2010/july/22/class-c-airspace-over-long-beach-not-justified. The FAA gave notice of this proposed change or “rule,” including a diagram of what the proposed Class C airspace would look like. Then provided the aviation community and the public a 30-day period to comment on the proposed change. The FAA ultimately 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. In other instances, the Congress may direct the FAA to act. See https://www.faa.gov//licenses_certificates//airmen_certification//basic_med//media//basicmed_faq.pdf. After members of the aviation community, including AOPA, lobbied for an alternative to FAA medical certification, Congress passed section 2307 of the [FESSA] on July 15, 2016. See https://www.congress.gov/bill/114th-congress/house-bill/636/text. In doing so, Congress forced the FAA to adopt BasicMed. Going back to the original point, the ultimate power to govern lies within the hands of Congress, the President, and Supreme Court, not administrative agencies (e.g., the FAA).
In conclusion, 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.
Ryan King is an in-house attorney with AOPA’s Legal Services Plan. Ryan is a Private Pilot and predominately flies Cessna 172s. He is a former Panel Attorney with the Pilot Protection Services program. The AOPA Legal Services Plan is offered as part of AOPA’s Pilot Protection Services.
