Volume 44 (2019)

Volume 44 (2019) / Issue 6

Jeffrey Ellis, 'The Nature of Some Subjects Requires Uniform Regulation and Aviation Is a Prime Example' (2019) 44 Air and Space Law, Issue 6, pp. 519–544


Determining whether the United States federal government or the individual states govern aviation-related matters is an issue that is integral to any legal analysis involving a US based operator, manufacturer or regulatory body. Resolution of this issue requires application of the preemption doctrine. That doctrine has its roots in the US Constitution and the foundational jurisprudence interpreting same. In recent times, this doctrine has become the subject of an increasingly complex legal analysis. The purpose of this article is to explain why the preemption analysis need not be so complex. A review of the early Supreme Court case law dealing with the inherent power of the federal government to regulate commerce along with the Supreme Court's early cases dealing with aviation regulation demonstrate that a far simpler analysis can be applied. This approach is consistent with the purpose and intent of the framers of the US Constitution and also simple common sense. As former Supreme Court Justice Potter Stewart once said when addressing another constitutional issue involving the power of the States to regulate pornography/free speech, there are some subjects that so obviously require federal regulatory control that you ‘know it when you see it.’

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ISSN: 0927-3379
ID: AILA2019033