In our post, last Wednesday, we discussed the meaning of the NTSB’s ruling in the Pirker case. Towards the end of the discussion, we noted Congress’ statutory construction provision, contained in the FMRA’s Special Rule for Model Aircraft:

Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.

FMRA, Sec. 336(b) (emphasis added).

We take this as evidence of Congress’ intent to limit the FAA’s jurisdiction over model aircraft to operators who endanger the national airspace, as opposed to the NTSB’s finding of broader jurisdiction to prohibit threats to life or property under 14 C.F.R. § 91.13(a). But what constitutes a threat to the national airspace? If the FAA was to conclude that using a model aircraft to buzz pedestrians on a sidewalk constituted such a threat, would it be upheld in a court?

It may come as a surprise to some that Congress has no general police power. For example, there is no general federal law prohibiting murder, except for murder of a U.S. government official or employee. There are exceptions that don’t pertain to our discussion, here.

The majority of federal prosecutions, for crimes such as money laundering, kidnapping and drug dealing, must have an interstate component in order to fall within the feds’ jurisdiction. For these and most civil federal regulations, Congress relies on the Interstate Commerce Clause of Article I of the U.S. Constitution, which gives Congress authority to regulate interstate commerce. This includes the authority to regulate the national airspace, and to delegate the enactment and enforcement of regulations to the FAA.

How far does the Commerce Clause extend?

It has become difficult to say where it doesn’t extend. In our opinion, the Framers intended the Commerce Clause to be a power to promote or facilitate interstate commerce. The United States had suffered with a weak central government under the Articles of Confederation, leading states to impose discriminatory tariffs against each other’s goods and to engage in other activity, such as printing money, that we take for granted today as exclusively federal in nature. Something had to be done to prevent the states from killing each other. But it was still regarded as a limited power.

Indeed, before the Switch in Time that Saved Nine, the courts found it relatively easy to distinguish between “interstate” commerce, which Congress could regulate, and commerce that was wholly intrastate. But then came decisions like Wickard v. Filburn, in which a hapless farmer was cited for exceeding his wheat production quota. The fact that he grew the excess wheat exclusively for consumption on his own farm was of no moment, the Supreme Court concluded. Because Mr. Filburn’s excess wheat reduced the net amount of wheat that needed to be sold on the market, it had a sufficiently substantial, indirect effect on interstate commerce to bring Mr. Filburn’s conduct within the ambit of the Commerce Clause.

The logic of Wickard has been applied more recently in cases such as Gonzales v. Raich, in which the Supreme Court found that growing your own medical marijuana, in your own backyard for your own consumption, and in compliance with state law, had a sufficient relationship to interstate commerce that the DEA could enter your yard and tear up your plants (assuming a good day – on a bad day, you might get prosecuted under federal law). Yeah, we know. Crazy. Just ask Justice Thomas, who wrote a scathing dissent in that case.

It looked like the Court might draw a line in National Federation of Independent Business v. Sebelius, otherwise known as the Obamacare “individual mandate” case. Contrary to popular belief, a majority held that the individual mandate, as a mandate, was unconstitutional. Nothing in the Court’s decisions regarding the Commerce Clause, that majority concluded, justified requiring an individual citizen to actually participate in commercial activity based on the mere fact that the citizen still drew breath. But in a moment that was reminiscent of the Switch in Time, Chief Justice Roberts sided with the Court’s liberal majority in deciding that the mandate could be sustained as a tax.  Go figure.

You can probably see where this is going. The question presented might one day be:

Does operating a model aircraft, away from controlled airspace, within a discrete area – like one’s backyard – and below the normal, safe operating altitude of a manned aircraft, implicate interstate commerce?

The intuitive answer would be, no. After all, it seems on its face to be a wholly intrastate activity. It is also, on its face, non-commercial in character. Small drones have very limited range, dictated by both visual line of sight rules and battery life. These practical limitations make it highly unlikely that a small, remote controlled drone is going to cross state lines.

But obviously, the answer isn’t that simple. For example, no one disputes the FAA’s authority over intrastate commercial air traffic, because without a federal system intrastate air travel simply would not work. In other words, every flight that enters the national airspace has a substantial, even if indirect, effect on interstate commerce.

Which brings us back to what we see as a critical question: Have we adequately defined the “national airspace”, given this new era of technology that is now upon us? Can we, for example, draw a bright line somewhere? Below 400 feet? Below the height of an average telephone pole?

Maybe. But then consider a counter-factual. If and when Amazon’s Prime Air service gets up and running, it might well operate exclusively in Class-G airspace, but few can doubt that a sales and distribution network like Amazon has a substantial effect on interstate commerce. And even if we’re just talking about the airspace, itself, the federal government surely has an interest in making sure that sUAS don’t interfere with manned aircraft traffic.

Fast-forward to Christmas Day, 2014. A 12-year old kid is playing with the brand-new Phantom that Santa left under his tree. As he gains confidence, he buzzes a jogger and a neighbor’s dog. He loops over and under power lines. He shoots up to 400 feet, then down, then up to 500 feet, and so on.

Does there come a point where the kid’s activity goes from being wholly intrastate, to having a substantial effect on interstate commerce?

Here, the FAA may have a trump card. Read Justice Scalia’s concurring opinion in Gonzales v. Raich, where he concludes that the Necessary and Proper Clause of Article I gives Congress the power to enact measures in support of its authority to regulate interstate commerce. In other words, “where Congress has the authority to enact a regulation of interstate commerce, ‘it possesses every power needed to make that regulation effective.'”

Granted, this reasoning was not adopted by the full Court, so its binding effect may be limited. But neither can Scalia’s opinion be easily dismissed. A court may well conclude that, however remote the impact the kid with his new Phantom has on interstate commerce, the ability to draw limits on his conduct is a necessary and proper exercise of federal authority to regulate the national airspace.  Said differently: What good is the power to regulate the national airspace if you can’t regulate activity that has the potential to impact the national airspace?

That is, at least, one possible outcome.

We will have more to say about this as events unfold.

UPDATE: Just to be clear, the discussion above is about one possible theory regarding the scope of the federal government’s jurisdiction to regulate contrivances made for flight in the air. It is not a comment on the merits of any particular regulation or policy.