Article VI and the Supremacy Clause The second paragraph of Article VI of the Constitution states:
“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.”
In short, federal law preempts state law whenever there is a conflict. In Command v. Chicago, the conflict was the ordinance that attempted to overrule the way the FAA regulated Part 133 certificate holders. (*Spoiler Alert – the court held for Command Helicopters.) Now, the question is – why? Why didn’t Chicago prevail? Why wasn’t its ordinance legal in reference to the U.S. Constitution?
In Aircraft Owners and Pilots Association v. Port Authority of New York (United States District Court E. D. New York) No. 68 C 775, 305 F. Supp. 93 (1969), that appellate court found that:
49 U.S.C. § 1348(a) authorizes and directs the Administrator of the Federal Aviation Administration to develop plans for and formulate policy with respect to the use of the navigable air space and to assign by rule or regulation or order the use of the navigable air space under such terms, conditions and limitations as he deems necessary in order to assure “the safety of the aircraft and the efficient utilization of such air space.”
The key words here are “safety of the aircraft.” The FAA is an agency that is part of the executive branch. By statute (49 U.S. Code § 106 - Federal Aviation Administration), the FAA is given the authority to create and regulate all aircraft operations. So, when the City of Chicago decided to infringe upon that authority by creating this ordinance, the city stepped right into the supremacy clause.
However, sometimes states can dictate things that you might assume fit under the holdings of entities such as the Aircraft Owners and Pilots Association. For instance, states can legislate a statute that requires ambulances to have air conditioning for the comfort of the patient, and they can make that a requirement for the issuance of an ambulance license. And that could apply to helicopter air ambulance (HAA) operations as well because the requirement for the air conditioning has nothing to do with “aircraft safety” – it’s just an accommodation for passenger comfort. Requiring it does not adversely affect any established CFR by the FAA, nor does it affect safe aircraft operations.
So, why was this brought before an Article III court instead of being adjudicated by an administrative law judge (ALJ) within the agency? Normally, actions within the regulatory reach of an agency are heard by an ALJ, but when the action — in this case, the City of Chicago and its ordinance requiring more than one engine to conduct longline operations within the city’s jurisdiction — created the conflict with the Article VI supremacy clause, the ALJ option was out of consideration. Generally, when an agency-related issue is brought before an Article III court, one of the elements that the plaintiff must present is that all attempts to resolve the issue at the agency level were exhausted. We will discuss in a future article the topic of how agencies work, why they fall under the executive branch, and when you can go outside the agency for relief.
A final note: in Harrison v. Schwartz, 319 Md. 360 (Md. 1990), the court found that Congress gets to lay the playing field when it comes to federal vs. state laws. The holding stated, in part, that “even absent express preemption, when a federal statute made ‘in pursuance’ of the Constitution is so comprehensive that it occupies the field leaving no room for state action, preemption also occurs.” I think we can all agree that the FAA pretty much has the field covered.
Scott Tish is an aviation consultant, using his 43 years in aviation to specialize in training, leadership, root cause analysis, safety management systems, and helicopter air ambulance operations. Scott lives in Castle Rock, Colorado, where he is continuing the pursuit of his Juris Doctorate. If you want to chat about this article, have questions, or have a suggestion for a topic you would like to see in a future article, you can reach him at
stish162@gmail.com
78 Jan/Feb 2024
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