Governmental Structure

As you probably know, it is the job of the legislative branch to write laws, the executive branch to enforce those laws, and the judicial branch to interpret them. In areas such as aviation, however, which require strict attention to relatively technical factors, it is quite difficult for Congress to adequately specify every detail in the legislation it passes. The trend, especially since the middle of this century, has been for Congress to write laws that hand a great deal of authority over to an administrative body of the executive branch, which has a greater ability to "micromanage" in such areas. In the case of aviation, those administrative bodies are the FAA, National Transportation Safety Board (NTSB), and to a very limited extent, the National Air and Space Administration (NASA). The role of these entities is so broad that its actions often seem to spill over into both legislative and judicial functions.

In order to see why that is not strictly true, one needs to understand the distinction between statutes and regulations. Statutes are created by the legislative branch, whereas regulations are products of administrative bodies, which again are part of the executive branch. As should be clear from the name, the Federal Aviation Regulations (FARs) belong to the latter category and are written by the FAA.

The power to regulate aviation was granted to the FAA (which was called the Federal Aviation Agency until the 1970s) upon its creation by Congress through the Federal Aviation Act of 1958. That legislation designated three functions of the FAA:

1. the making of rules to govern and regulate civil aviation,
2. setting long-term policy toward the governance and fostering of aviation, and
3. enforcement of the rules that it makes.

By enabling the FAA to carry out the three functions listed above, Congress did not simply "wash its hands" of aviation. The following are Congressional committees that have jurisdiction over general aviation issues in one capacity or another:

• House of Representatives
  • Transportation and Infrastructure Committee (specifically the Subcommitte on Aviation): handles the nation's transportation programs and policies, and has jurisdiction over most issues affecting general aviation, including the Federal Aviation Administration's operations and programs.
  • Science Committee: has jurisdiction over FAA research and development programs.
  • Appropriations Committee: has jurisdiction over annual spending authority for all "discretionary" government spending. Transportation Subcommittee handles agencies and programs of interest to general aviation, including FAA spending.
  • Ways and Means Committee: has jurisdiction over taxes
  • Budget Committee: examines and evaluates funding of current and proposed policies and programs on a broad scale, and produces an annual budget resolution, which establishes broad spending, savings, and tax parameters for other committees.
• Senate
  • Commerce, Science, and Transportation Committee: Aviation Subcommittee has jurisdiction over most issues affecting general aviation, including FAA operations and programs.
  • Appropriations Committee: has jurisdiction over annual spending authority for all "discretionary" government spending. Transportation Subcommittee handles agencies and programs of interest to general aviation, including FAA spending.
  • Finance Committee: This committee has jurisdiction over taxes.
  • Budget Committee: examines and evaluates funding of current and proposed policies and programs on a broad scale, and produces an annual budget resolution, which establishes broad spending, savings, and tax parameters for other committees.

1. Based on its investigations and analysis of accidents and safety records, it makes many recommendations to the FAA concerning the issuance of airworthiness directives, chnages in operational practices, changes in air traffic control procedures, and similar issues. The FAA takes these recommendations very seriously and adopts about 80 percent of them. (The NTSB provides documentation and current status of safety recommendations it has addressed to the FAA at its Most Wanted Aviation Safety Improvements page.)
2. As I discuss in the section on enforcement procedures, the NTSB is the body that adjudicates in hearings that result from appeals of FAA enforcement actions. This role is extremely important for those interested in determining how to interpret a given regulation. We have already seen that the FAA has the responsibility of creating and enforcing regulations, so that Congress does not have to concern itself with such a fine degree of detail. The continuum of granularity or specificity does not stop there, however. Even though the FARs often seem to pilots to be overwhelmingly nitpicky and hair-splitting, they still contain a great deal of vagueness and ambiguity. By deciding whether or not a given regulation has been appropriately applied in a given situation with a specific set of associated facts, it is the NTSB's job to clarify those vague and ambiguous aspects of the FARs. If you would like to know whether or not an FAR applies in a specific situation, it is often a good idea to see if the NTSB has made a decision in a similar case. If it has, stare decisis -- the principle that adjudicators should follow the precendents set by previous cases -- dictates that the conclusion in your case would probably be the same.

Finally, the judicial branch enters the picture by making case law decisions in the following ways:

• Interprets the legislation passed by Congress that effects general aviation pilots, including the enabling Federal Aviation Act;. This making conclusions about such considerations as whether or not legislation is Consitutional, whether violation of an FAR was sufficiently negligent to warrant tort action against the pilot (i.e. whether or not he or she can be sued by a party allegedly injured by the pilot's actions).
• Decides whether or not FAA orders, such as the issuance of airworthiness directives or ordering a given operating specification for a commercial operator, are within the FAA's authority and/or correctly follow its procedures as laid out in legislation passed by Congress or constructed by the FAA itself.
• Though such cases are rare, the United States Court of Appeals, District of Columbia Circuit hears cases that have run through the NTSB appeals process and have been further appealed by the pilot. The court considers such things as whether or not the NTSB followed due process, whether or not the NTSB's adjudication procedures as laid out in its enabling legislation were properly followed, whether or not the NTSB's decision violated valid precendent established by previous NTSB decisions, and whether or not the evidence of the case supports the conclusion of the NTSB. These cases can be appealed even further, to the U.S. Supreme Court. Such appeals are extremely uncommon, however, and it is even less common for the Court to grant certiorari to (i.e. agree to hear and decide on) such cases.

Yet another possible player in the arena of aviation law is the U.S. Department of Justice. As I discuss in the section on the enforcement process, FAA actions are part of civil law. But if a pilot engages in activities that go beyond simple violations of FARs and enter the realm of criminal law, the Justice Department will get involved.

One should also remember that state government is often involved in legal activities related to general aviation. In the case of an accident, for example, it is generally state law that determines whether or not the pilot is liable for damages in a civil suit. States also make provisions for the sale and registration of aircraft. And the FARs often grant powers to state and local law enforcment officials such as in the case of drug and alcohol testing (91.17) and the inspection of pilot certificates (61.3).