A Tale of Two Sovereigns: Federal and State Use and Regulation of Unmanned Aircraft Systems

Despite claims to the contrary, the federal government is severely limited in what it can do to regulate unmanned aircraft systems (UASs). States, on the other hand, as governments of general jurisdiction, have expansive powers that they are already using to grapple with the questions posed by UAS related to privacy, crime, and public safety. This chapter outlines the evolution of federal measures, noting their limitations, before delving into three categories of state law, related to law enforcement, criminal measures, and regulatory regimes. The chapter then turns to the history of state sovereignty, looking at states’ jurisdiction over persons and land within their bounds, before turning to the limits of federal interstate commerce authorities. With river navigation and aviation serving as the forerunners of federal power, the chapter distinguishes the types of questions that accompany UAS, arguing that it is in relation to adjacent airspace and noneconomic activities where the federal government is at its weakest in any effort to regulate the states. Up to 500 ft above the ground, states have sovereignty, with authority over roads, land, and waterways. Within this domain, federal Commerce Clause powers only occupy a narrow area, leaving state police powers the dominant framework for UAS. The chapter concludes by highlighting the advantages of having states take the lead for UAS, focusing on the risk to rights of allowing the federal government to move into this realm and underscoring the importance in the role of the states as incubators of innovation