AOPA Pilot Magazine - August 2023 - 106

FLY WITH AOPA
LEGALLY SPEAKING /
We, the people
The FAA and our constitution
THE MA IN BODY of the U.S. Constitution
creates three branches of government:
the legislative, the executive, and the
judicial. Where does the Federal Aviation
Administration (FAA) fit in?
The 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 branches. Each administrative
agency must answer to Congress (either
house or both), the president, or the U.S.
Supreme Court. The Constitution only
allows for those three bodies.
There is no mention of the FAA or
any other administrative agency in the
U.S. Constitution or its 27 amendments.
The FAA is a creation of Congress through
statute, 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, created in 1938,
that regulated the aviation industry until
the FAA's creation in 1958. 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. " 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 principal
stems from the non-delegation
doctrine, which holds that one branch
(usually Congress) cannot delegate its
106
AOPA PILOT / August 2023
BY RYAN KING
Pilot Protection
Services
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
nonaviation issues.
Although Congress created the FAA,
the agency is controlled by the executive
branch and answers to the president.
Therefore, the president nominates the
FAA administrator, and the nominee must
be approved by two-thirds of the Senate.
The FAA puts 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.
In 2010 the FAA was considering
whether to change Long Beach Airport/
Daugherty Field's Class D airspace to
Class C airspace. The FAA gave notice of
this proposed change or " rule, " including
a diagram of what the proposed Class C
airspace would look like. Then the agency
provided the aviation community and the
public a 30-day period to comment on the
proposed change. The FAA 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.
Congress may direct the FAA to act.
After members of the aviation community,
including AOPA, advocated for an alternative
to FAA medical certification, Congress
passed section 2307 of the FAA Extension,
Safety, and Security Act on July 15, 2016.
In doing so, Congress required the FAA to
adopt BasicMed.
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@aopa.org
aopa.org/pps
AV I AT ION F INANCE
Adam answers /
BY ADAM MEREDITH
President, AOPA Finance
Q I am building a Kitfox
S7. I paid cash for the kit,
about $51,000. I am looking
for a new engine and
propeller for about $30,000
to $35,000. Does AOPA
finance those items?
A We have multiple
lenders that can finance
experimental aircraft,
however, at the current time
none of our lending options
will finance an incomplete
aircraft. The best option
for financing is to complete
the aircraft using your own
funds or some type of shortterm
financing you have
available. Once the aircraft
is completed and airworthy,
our lenders would be able
to provide a reimbursement
loan for your cash expenses
or refinance your shortterm
loans into a standard
aircraft loan.
aopafinance.org
800-62-PLANE (75263)
http://www.aopa.org/pps http://www.aopafinance.org
AOPA Pilot Magazine - August 2023

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