What can drones tell us about Supreme Court Justice nominees? It turns out, quite a bit.
Earlier this week, President Trump nominated Judge Brett Kavanaugh of the United States Court of Appeals for the District of Columbia Circuit to fill the seat vacated by Justice Kennedy. In his prepared remarks, Judge Kavanaugh stated that “a judge must be independent, and must interpret the law, not make the law. A judge must interpret statutes as written . . . .” In order to determine whether Judge Kavanaugh lives these words, or merely pays them lip service, we have to look at his opinions.
A little over a year ago, the FAA’s regulatory scheme requiring all hobbyists to register their model aircraft was struck down in Taylor v. Huerta. The unanimous decision in that case was written by Judge Kavanaugh.
The FAA had enacted the registration regulations on an emergency basis, claiming that there was a serious risk to aviation safety that had to be remedied by immediate action. Unfortunately for the FAA, the Congress had passed a statute in 2012 that contained the Special Rule for Model Aircraft. The statute explicitly stated that the FAA “may not promulgate any rule or regulation regarding a model aircraft.”
The FAA defended its action on the grounds that the registration regulations were not “new rules” but were just a way to implement a preexisting statute that required all aircraft to be registered. Judge Kavanaugh rejected this regulatory sleight-of-hand:
The Registration Rule is a rule that creates a new regulatory regime for model aircraft. The new regulatory regime includes a “new registration process” for online registration of model aircraft. 80 Fed. Reg. at 78,595. The new regulatory regime imposes new requirements – to register, to pay fees, to provide information, and to display identification – on people who previously had no obligation to engage with the FAA. And the new regulatory regime imposes new penalties – civil and criminal, including prison time – on model aircraft owners who do not comply.
The FAA also argued that it has a general mandate to keep aviation safe, and that this permitted it to issue the regulations, as they would enhance safety. Judge Kavanaugh rejected this argument on the grounds that Congress had already chosen the appropriate balance between safety and the regulation of model aircraft, and it was not up to the FAA to change that balance.
Aviation safety is obviously an important goal, and the Registration Rule may well help further that goal to some degree. But the Registration Rule is barred by the text of Section 336 of the Act. Congress is of course always free to repeal or amend its 2012 prohibition on FAA rules regarding model aircraft. Perhaps Congress should do so. Perhaps not. In any event, we must follow the statute as written. In short, Section 336 of the FAA Modernization and Reform Act prohibits the FAA from promulgating “any rule or regulation regarding a model aircraft.” The Registration Rule is a rule regarding model aircraft. Therefore, the Registration Rule is unlawful to the extent that it applies to model aircraft.
This concise opinion is exactly in line with the statements made by Judge Kavanaugh when he was nominated, and, in fact, uses the same language. When faced with an opportunity to substitute his own judgment or the judgment of regulators for that of Congress, it was the will of Congress that prevailed. To the extent that a policy argument could be made to change the law, it was up to the Congress to do so. In fact, less than six months later, Congress did exactly that, and passed Section 1092 to the 2018 National Defense Authorization Act that reinstated the model aircraft registration regulations.
So, based on the decision in Taylor, it appears that Judge Kavanaugh both “talks the talk,” and “walks the walk.”