Do I feel lucky?

Anyone who has studied the law is likely to be familiar with the issue of federal-state preemption.  The doctrine may be generally described as, where the Constitution grants a power to the federal government to regulate an activity, and Congress exercises that power, state laws that contradict or undermine federal law are preempted and therefore invalid.

No one seriously questions whether Congress has authority under the Constitution to regulate the National Airspace (NAS), and no one questions the authority of the FAA to carry out enforcement of Congress’ mandates to regulate the NAS.  We discussed the scope of that power in this post, and the problem of drawing a bright line on the limits of the NAS.  The full answer to the question remains unsettled, but the argument is over where to draw the margins, not over the power, itself.

Enter the Oklahoma Senate, which might be about to vote on a bill that would grant immunity to anybody who shoots down a drone over his or her property.  If passed, this would put Oklahoma on a collision course with federal law, which makes damaging or destroying an aircraft a felony.  This statute covers pretty much any “aircraft” in the U.S.  The FAA has declared – and the NTSB has affirmed – that a “model aircraft” is an “aircraft” for purposes of the FARs.

Thus, even though Oklahoma might purport to grant its citizens immunity from prosecution when shooting down a drone (or a town passes a law encouraging its citizens to shoot down drones), the shooter could still be prosecuted under federal law, which would completely pre-empt any state law immunity.  If you think we’re kidding, consider the discussion of Gonzales v. Raich in this post.  The feds might decide not to enforce the law against a person, but that is a matter of prosecutorial discretion.

This is why state and local governments need to be very careful about incentives they put in place vis a vis drones.  They could very well mislead their citizens into earning time in federal prison.